Duffy v. Jones ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DEIRDRE DUFFY,
Plaintiff,
v.
Civil Action No. 16-1178 (RDM)
EUGENE LOUIS DODARO, Comptroller
General of the United States, 1
Defendant.
MEMORANDUM OPINION AND ORDER
Deirdre Duffy is a disabled veteran who was employed as a Band IIA Communications
Analyst at the Government Accountability Office (“GAO”) from July 2013 until December
2016. Dkt. 31 at 2–3. Proceeding pro se, Duffy asserts fifteen claims against her former
employer, including claims under several federal employment discrimination statutes, the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, the due process clause of
the Fifth Amendment, and a claim for breach of contract. Dkt. 31 at 87–102. The GAO, in turn,
moves to dismiss all of her claims or, in the alternative, for summary judgment with respect to
her Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq., claim for failure to
accommodate. Dkt. 33 at 1; Dkt. 33-1 at 13.
For the reasons explained below, the Court will GRANT in part and will DENY in part
the GAO’s motion.
1
Comptroller General Dodaro is automatically substituted Reginald E. Jones as the Defendant
pursuant to Fed. R. Civ. Pro. 25(d).
I. BACKGROUND
A. Factual Background
The following facts are taken from Duffy’s second amended complaint, Dkt. 31, which
the Court must accept as true for purposes of the GAO’s motion to dismiss, see Klayman v.
Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014). Duffy suffers from chronic Post Traumatic
Stress Disorder (“PTSD”) related to her military service. Dkt. 31 at 3 (Second Am. Compl.
¶¶ 1–2). Her PTSD symptoms include “hyperarousal,” which causes her nervous system to
“operate on full alert” and “impair[s] her ability to sleep, learn, and remember.” Id. at 3–4
(Second Am. Compl. ¶¶ 3–4). Unless properly managed, this can cause her physical harm, such
as “damage [to her] endocrine system, reduce[d] immunity, [and] . . . autoimmune issues.” Id.
at 4 (Second Am. Compl. ¶ 4). To minimize the physical and psychological effects of her PTSD,
Duffy “must meticulously manage all facets of her immediate environment . . . as well as her
diet, exercise, social activities, sleep hygiene, and thought processes.” Id. at 5 (Second Am.
Compl. ¶ 6).
Duffy applied for a position as a Band I Communications Analyst at the GAO in
September 2009. Dkt. 31 at 35 (Second Am. Compl. ¶ 71). In order to receive a veteran’s
preference in the GAO’s consideration of her application, Duffy submitted her discharge
paperwork from U.S. military, which states that she has a “Disability – Permanent.” Id. She was
notified that she was among the “most qualified” for the position and that “an interview would be
scheduled.” Id. (Second Am. Compl. ¶ 72). “No interview was scheduled,” and Duffy “never
received any written notice of a hiring decision” with respect to that position. Id.
In February 2013, Duffy once again applied for position at the GAO, this time for a job
as a Band II Communications Analyst. Id. (Second Am. Compl. ¶ 74). As with her first
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application, Duffy submitted her military discharge paperwork to the GAO, which again
reflected her permanent disability. Id.; see also Dkt. 38-1 at 2–4, 57–60. Duffy was invited to
interview for a position working with the GAO’s Strategic Issues (“SI”) mission team, and,
during the interview process, she was told that the position “would be located in . . . the San
Francisco, Boston, or Atlanta field offices based upon [the] selectee[’s] preference.” Dkt. 31 at
35 (Second. Am. Compl. ¶ 75). She “was also invited to interview for a Band II
Communications Analyst position within [the] GAO’s Strategic Planning and External Liaison
(‘SPEL’) office” and was told “by the Hiring Manager for this position that it was located [at
the] GAO[’s] Headquarters in Washington[,] D.C.” Id. at 36 (Second Am. Compl. ¶ 76).
In May 2013, the GAO offered Duffy a position working with either the SI mission team
or the SPEL office. Id. at 37 (Second Am. Compl. ¶ 79). After she called to accept the position
with the SI mission team and elected to work in San Francisco in order to be closer to her home
in Seattle, the GAO informed Duffy that, despite what she had had previously been told, the SI
position was available only in Washington, D.C. Id. (Second Am. Compl. ¶¶ 81–82). Duffy
then asked if the SPEL position was still available and was told that the position had been filled.
Id. (Second Am. Compl. ¶ 83). As a result, Duffy accepted the position with the SI mission team
in Washington, D.C. Id. (Second Am. Compl. ¶ 84). She began work at the GAO as a Band IIA
Communications Analyst on July 1, 2013. Id. at 38 (Second Am. Comp. ¶¶ 85–86).
In September 2013, several months after starting work, Duffy “met with a member of
the” GAO’s human resources office “to discuss concerns that she had [about] sirens that went off
continuously outside the office” and “the intensity of the work culture in the [D.C.] GAO office”
and how these “conditions” might negatively affect “her PTSD.” Id. at 44 (Second Am. Compl.
¶ 115). The human resources office referred her to a website and to other information regarding
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reasonable accommodations and, about a month later, Duffy requested “episodic telework
arrangements so she could travel back and forth to her home” in the Seattle area in order “to
manage her PTSD symptoms and obtain respite from the urban stressors.” Id. (Second Am.
Compl. ¶ 117). Duffy made this request to her supervisor, Brian James, and it was approved by
the SI mission team’s Managing Director, Chris Mihm. Id. at 35, 44 (Second Am. Compl. ¶¶
75,118).
This “episodic telework arrangement[]” continued until at least October 2014, and,
during that time, Duffy “made key contributions” to the SI mission team’s work, including
training other staff members, id. at 44, 47 (Second Am. Compl. ¶¶ 117, 128–29), helping the
“Assistant Director during a staffing shortfall,” id. at 47 (Second Am. Compl. ¶ 129), and aiding
in the production of at least three different GAO reports that received “significant media
attention,” id. In recognition of her work, Duffy received time off awards, praise from her team
and supervisors, as well as additional work due to increased demand for her skills. Id. (Second
Am. Compl. ¶¶ 129–30).
In October 2014, Duffy developed a “severe dental abscess” while visiting Seattle,
“which required an emergency root canal” and a month-long recovery there. Id. at 53 (Second
Am. Compl. ¶ 151). James approved Duffy’s request to telework from Seattle during this period.
Id. Upon returning to Washington, D.C. at the end of that month, however, Duffy began to
experience “a systemic breakdown of her health as a result of stimuli overload and/or chronic
hyperarousal of her nervous system.” Id. at 53 (Second Am. Compl. ¶¶ 151–52). As a result, in
November 2014, she “submitted a formal Reasonable Accommodation request to GAO’s
Reasonable Accommodations Coordinator, Colleen Marks . . . , seeking to work full time from
her home in the Seattle area” or, in the alternative, “reassignment to the San Francisco field
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office or to a mission team with a presence in the Seattle office.” Id. at 54 (Second Am. Compl.
¶ 155). After Duffy notified James of her “formal accommodation [r]equest,” he told her “don’t
do that” and said that she “should instead request accommodation [through] the short term
telework program” so her supervisors could “approve [it] internally.” Id. (Second Am. Compl.
¶ 156). Based on that advice, Duffy withdrew her formal accommodation request. Id. (Second
Am. Compl. ¶ 157). Duffy then requested a six-month short-term telework arrangement, which
was approved. Id. at 54–55 (Second Am. Compl. ¶ 158). Duffy began working full-time from
home near Seattle on December 1, 2014. Id. at 55 (Second Am. Compl. ¶ 159).
Between March 2015 and May 2015, Duffy “developed serious complications related to
an improperly treated dental condition” that prevented her from returning to Washington, D.C.
by May 30, 2015, when her six-month telework arrangement was scheduled to conclude. Id. at
59–60 (Second Am. Compl. ¶¶ 167, 174). At James’s suggestion, Duffy requested and was
granted a second short-term telework arrangement allowing her to continue to work from the
Seattle area from June 2015 through November 2015. Id. at 60 (Second Am. Compl. ¶¶ 170–
71). After Duffy expressed concerns to James about her ability to return to Washington, D.C. in
December 2015, James recommended she “apply for a formal reasonable accommodation
[through] Colleen Marks’s [disability program] office.” Id. at 60–61 (Second Am. Compl. ¶¶
173–74). When Duffy asked Marks for “information about what she needed to submit with her
formal Reasonable Accommodations . . . request,” “Marks stated that [Duffy] needed to have her
doctor provide the answers to a ‘six-point questionnaire’” but “did not mention or provide any
internal guidance on additional criteria related to granting [the] request.” Id. at 61 (Second Am.
Compl. ¶ 175). Duffy submitted her formal request in early October 2015, which included the
completed six-point questionnaire along with additional medical documentation from two other
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doctors and a medical release permitting GAO staff to speak directly with Duffy’s treating
clinician. Id. at 64 (Second Am. Compl. ¶ 187).
On October 22, 2015, Duffy met with Marks and Lisa Briscoe, a Reasonable
Accommodations Specialist, to discuss her formal accommodation request. Id. at 63, 65 (Second
Am. Compl. ¶¶ 184, 190). Duffy alleges that, at this meeting, Marks “verbally denied” her
request and “insisted” that Duffy had “not established (1) the presence of a disability under the
ADA or (2) that functional limitations of that disability exist.” Id. at 65 (Second Am. Compl.
¶ 190). When Duffy sought additional information, including the written policies supporting the
denial of her request, Marks refused to furnish it and stated that, if Plaintiff disagreed with the
decision, Marks “could convene the Accommodation Committee.” Id. at 66 (Second Am.
Compl. ¶ 190). Marks cautioned Duffy, however, that if she convened the Accommodation
Committee, “[t]he Comptroller of the United States—and several members of the Executive
Committee—are going to learn all about your ‘mental disorder’” and asked, “Would you like me
to do that?” Id. Duffy responded “that under no circumstances would she permit Marks to ‘out’
her to the” Accommodations Committee “until Marks provided written proof that the denial was
legitimate policy,” and Duffy again “requested to see the written policy and the criteria list for
the kinds of doctors, letters, etc. that [the] GAO required.” Id. According to Duffy, “Marks
repeatedly ignored her request for policy documentation.” Id.
Duffy alleges that Marks did inform her that the medical documentation she submitted in
support of the request was “invalid,” id. at 65, 67 (Second Am. Compl. ¶ 190), and that “she
needed a full medical evaluation and a report of all [of Duffy’s] symptoms so Marks could ‘see
just how disabled you really are,’” id. at 67 (Second Am. Compl. ¶ 190) (emphasis in original).
According to the second amended complaint, Marks told Duffy that the letter she had submitted
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from her physician “was invalid because Marks ‘didn’t know who this person is’” and that she
“asked [Duffy] if she would be willing to submit to a medical examination by a clinician chosen
by Marks.” Id. at 67–68 (Second Am. Compl. ¶ 190). Duffy refused and asserted that she had
already been found to have a permanent disability by the Veterans Administration (“VA”) and
had already established an “existing disability.” Id. at 68 (Second Am. Compl. ¶ 190). Briscoe
then stated that “PTSD . . . changes over time[] and [that Duffy] might not even have it
anymore.” Id. at 68 (Second Am. Compl. ¶ 190). Duffy further claims that Marks stated, “[j]ust
because the VA says you have a permanent disability doesn’t mean you do. The fact that you
work full-time for [the] GAO proves that you are not 100% disabled.” Id. (emphasis omitted).
Duffy accused Briscoe and Marks of “harassment” and indicated that she “intended to
report them for it.” Id. at 69 (Second Am. Compl. ¶ 191). After the meeting, Duffy informed
Marks “in writing that all further determinations on her Reasonable Accommodations request
would require [Equal Employment Opportunity (‘EEO’)] involvement and assurances that the
process was fair.” Id. (Second Am. Compl. ¶ 194). The day after the meeting, Duffy contacted
the GAO’s Office of Opportunity and Inclusiveness (“O&I”), to initiate the EEO counseling
process. Id. at 70 (Second Am. Compl. ¶ 196).
In mid-November 2015, Duffy submitted a request for accommodation that would permit
her to telework just from December 1, 2015 until the end of January 2016. Id. at 72 (Second
Am. Compl. ¶ 204). Marks sought additional information from one of Duffy’s doctors before
she would consider the request, notwithstanding the fact that Marks already had a letter from that
doctor and the doctor was out of the country. Id. (Second Am. Compl. ¶ 205). Duffy’s request
“was not granted.” Id. (Second Am. Compl. ¶ 206). Around the same time, Duffy underwent
surgery to remove an infected bone from her upper jaw. Id. at 73 (Second Am. Compl. ¶ 209).
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She “requested and was approved for sick leave to recover.” Id. At the end of November 2015,
Duffy’s short-term telework arrangement expired, and she thus requested unpaid Family and
Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., leave “to avoid being marked AWOL
from her position.” Id. at 73–74 (Second Am. Compl. ¶¶ 210–11). Her FMLA request was
approved through March 2016. Id. at 74 (Second Am. Compl. ¶ 213).
Meanwhile, the EEO process was ongoing. On February 4, 2016, Duffy filed a formal
EEO complaint with O&I, “requesting . . . that the hostile workplace cease and that her
reasonable accommodation of ongoing telework be reinstated/continued.” Id. at 76 (Second Am.
Compl. ¶ 223). Duffy “was never contacted by anyone from O&I regarding her formal EEO
complaint,” and the complaint was dismissed on March 21, 2016. Id. (Second Am. Compl.
¶¶ 224, 226)
Upon the expiration of her FMLA leave, Duffy requested further FMLA leave through
July 31, 2016, and that request was granted. Id. at 77 (Second Am. Compl. ¶ 229). On May 25,
2016, Duffy “again requested that Marks grant her [a] reasonable accommodation,” and she
submitted “the medical documentation submitted previously,” “an analysis of her prior
submissions” explaining why she “had met and exceeded [the] GAO’s requirements,” and “a
letter dated April 19, 2016, from her treating” physician. Dkt. 31 at 78 (Second Am. Compl.
¶¶ 233–234). Marks again “denied [Duffy’s] request for [a] reasonable accommodation,”
concluding that the medical documentation Duffy submitted was insufficient to support the
accommodation she requested because it failed to “provide information concerning the nature
and severity of the medical conditions and current functional limitations imposed by those
conditions.” Id. at 78–79 (Second Am. Compl. ¶ 236). Duffy requested information from Marks
8
about the possibility of personally appearing before the Accommodations Committee but did not
receive any response. Id. at 79 (Second Am. Compl. ¶¶ 238–39).
On June 3, 2016, Duffy “applied for a no-cost transfer” to the GAO’s Seattle field office
but alleges that this request was never addressed. Id. at 80 (Second Am. Compl. ¶¶ 243–44).
Duffy also made “a transfer request via the Employee Preference Survey.” Id. at 81 (Second
Am. Compl. ¶ 247). The GAO did not grant either request. Id. at 80 (Second Am. Compl.
¶ 244) (no-cost transfer request); id. at 82 (Second Am. Compl. ¶ 251) (Employee Preference
Survey request). On July 31, 2016, Duffy requested leave without pay through October 31,
2016, which the GAO granted. Id. at 81 (Second Am. Compl. ¶ 248). In September 2016, she
asked for an extension of that leave beyond October 31, 2016, and the GAO approved that
request as well but informed Duffy that her unpaid leave could not be extended “indefinitely.”
Id. at 82–83 (Second Am. Compl. ¶ 255). On December 1, 2016, Duffy formally resigned from
her position. Id. at 83 (Second Am. Compl. ¶ 259).
B. Procedural Background
Duffy filed this action on June 20, 2016, while still an employee of the GAO. See Dkt. 1.
Her initial complaint, which was prepared by counsel, included a single claim: that the GAO
violated the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq., when it
denied Duffy’s reasonable accommodation requests. Id. at 8–9. Duffy’s counsel subsequently
withdrew, Dkt. 17; Minute Order (Nov. 30, 2016), and Duffy, proceeding pro se, filed her first
amended complaint, which still advanced a single claim under the Rehabilitation Act, see Dkt.
19 at 20. With leave of Court, Duffy later filed her second amended complaint, which asserts
fifteen claims, including claims under the Rehabilitation Act, the ADA, and Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16, and claims for breach of contract,
9
defamation, intentional infliction of emotional distress, and civil conspiracy. Dkt. 31 at 87–104.
Duffy also alleges that the GAO constructively discharged her without due process, in violation
of the Fifth Amendment. Id. at 102. The GAO now moves to dismiss all of Duffy’s claims for
lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be
granted, and moves, in the alternative, for summary judgment with respect to Duffy’s failure-to-
accommodate claims on the ground that she affirmatively abandoned her request for an
accommodation. Dkt. 33 at 1; Dkt. 33-1 at 13.
II. LEGAL STANDARD
The GAO moves to dismiss under both Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6) and moves, in the alternative, for partial summary judgment under Federal Rule of Civil
Procedure 56.
A motion to dismiss under Rule 12(b)(1) challenges the Court’s jurisdiction to hear a
claim and may raise a “facial” or a “factual” challenge to the Court’s jurisdiction. A facial
challenge asks whether the plaintiff has alleged facts sufficient to establish the Court’s
jurisdiction, while a factual challenge asks whether “the complaint [as] supplemented by
undisputed facts evidenced in the record, or the complaint [as] supplemented by undisputed facts
plus the [C]ourt’s resolution of disputed facts,” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192,
197 (D.C. Cir. 1992), establish that the Court has jurisdiction. The plaintiff bears the burden of
establishing that the Court has subject matter jurisdiction. See Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992). Courts must construe pro se pleadings “liberally” and must hold pro se
pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
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A motion to dismiss for failure to statute a claim under Rule 12(b)(6), in contrast, tests
the legal sufficiency of the allegations contained in the complaint. A complaint must contain “‘a
short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion to dismiss, a plaintiff must furnish “more than labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” Id. Instead, the complaint’s “[f]actual allegations
must be enough to raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted).
Finally, a court’s adjudication of a motion for summary judgment under Rule 56 asks
whether the moving party is legally entitled to prevail based on the undisputed facts. The Court
will grant summary judgment if the movant shows “that there is no genuine dispute as to any
material fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A fact is “material” if it is
capable of affecting the outcome of the litigation. Holcomb v. Powell, 433 F.3d 889, 895 (D.C.
Cir. 2006). A dispute is “‘genuine’ if ‘the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248) “A party asserting
that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular
parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).
III. ANALYSIS
Duffy’s second amended complaint asserts fifteen different claims, including claims
under the ADA, the Rehabilitation Act, and Title VII and claims for breach of contract,
11
defamation, intentional infliction of emotional distress, civil conspiracy, and a violation of her
right to due process. Dkt. 31 at 87–104. Several of the GAO’s challenges to Duffy’s claims are
easily resolved and thus the Court begins with those.
A. Title VII of Civil Rights Act
The GAO argues that Duffy’s Title VII claims (Counts VII, IX, and X) must be
dismissed because the second amended complaint does not contain any allegations of
discrimination on the basis of any of the characteristics protected by that statute. Dkt. 33-1 at
14–15. Title VII prohibits discrimination on the grounds of “race, color, religion, sex, or
national origin,” 42 U.S.C. § 2000e-2(a), but not disability, see Sledge v. District of Columbia,
63 F. Supp. 3d 1, 19 (D.D.C. 2014). Because the second amended complaint says nothing about
discrimination based on Duffy’s race, color, religion, sex, or national origin, the Court must
dismiss Duffy’s Title VII claims for failure to state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6).
B. Breach of Contract Claim
The GAO also moves to dismiss Duffy’s breach of contract claim (Count XIV) arguing
that the Court lacks jurisdiction over it. Dkt. 33-1 at 15–16. The Court agrees. “In suits against
the government, subject-matter jurisdiction turns on at least ‘two different jurisdictional
questions.’” Yee v. Jewell, 228 F. Supp.3d 48, 58 (D.D.C. 2017) (quoting Trudeau v. FTC, 456
F.3d 178, 183 (D.C. Cir. 2006)). “First, has Congress provided an affirmative grant of subject-
matter jurisdiction? And, second, has Congress waived the United States’s immunity to suit?”
Id.
The Tucker Act, 28 U.S.C. § 1346 et seq., provides the exclusive waiver of sovereign
immunity for cases against the United States based on contracts. Spectrum Leasing Corp. v.
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United States, 764 F.2d 891, 895 & n.8 (D.C. Cir. 1985). Although district courts have
concurrent jurisdiction over Tucker Act claims for “damages” of no more than $10,000, the
United States Court of Federal Claims has exclusive jurisdiction under the Tucker Act of claims
for “damages” in excess of $10,000. See 28 U.S.C. § 1346(a)(2). Because Duffy seeks damages
in excess of $10,000, see Dkt. 31 at 103 (seeking “full backpay and front pay” as well as “l[o]st
wage increases, promotions, and fringe benefits” and “losses to pension, social security, and
other retirement accounts,” among other forms of monetary relief), the Court lacks jurisdiction
over her claim for breach of contract.
C. Tort Claims
The GAO further moves to dismiss Duffy’s D.C. law tort claims (Counts XI, XII, XIII)
for lack of subject-matter jurisdiction. Dkt. 33-1 at 17. Although the second amended complaint
lists several defendants including Marks and Briscoe, among others, Dkt 31 at 3, Duffy has
served only the GAO, Dkt. 8 at 2 (summons accepted by employee authorized to receive service
on behalf of the agency); see also Fed. R. Civ. P. 4, and counsel has appeared only on behalf of
Reginald Jones, see Dkt. 9, who served as the Managing Director of the GAO’s Office of
Opportunity & Inclusiveness at the relevant time, and the GAO itself, Dkt. 33. The United
States—and “public officials sued in their official capacities,” Wilson v. Dep’t of Transp., 759 F.
Supp. 2d 55, 64 (D.D.C. 2011), are subject to suit for damages only if Congress has waived the
sovereign immunity of the United States. The Federal Tort Claims Act provides a “limited
waiver of sovereign immunity” and governs what tort claims can be brought against the United
States. Wilson, 759 F. Supp. 2d at 64; Sloan v. Dep’t of Housing and Urban Dev., 236 F.3d 756,
759 (D.C. Cir. 2001). Given this background, the Court now addresses each of Plaintiff’s
common law tort claims in turn.
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Duffy’s claim for defamation must be dismissed because claims for “libel” and “slander”
are specifically excluded from the FTCA’s waiver of sovereign immunity. 28 U.S.C. § 2680(h).
Courts have interpreted this exclusion to generally bar defamation claims. See Gardner v.
United States, 213 F.3d 735, 737 n.1 (D.C. Cir. 2000) (“[Plaintiff’s] defamation claim against the
United States is barred, because suits for libel or slander are prohibited under the Federal Tort
Claims Act.”). Because “the FTCA does not waive immunity for claims of defamation,” Wilson,
759 F. Supp. 2d at 64, Duffy’s defamation claim must be dismissed for lack of subject-matter
jurisdiction.
As Defendant points out, Dkt. 33-1 at 18, Duffy’s claims for intentional infliction of
emotional distress and civil conspiracy lie beyond the Court’s jurisdiction for a different reason:
Duffy failed to exhaust her administrative remedies with respect to those claims, as required by
the FTCA. An FTCA claimant may not bring suit until she has first presented her claim to the
agency, and the agency has finally denied it. See 28 U.S.C. § 2675(a). To satisfy this
requirement, “a claimant [must] file (1) a written statement sufficiently describing the injury to
enable the agency to begin its own investigation, and (2) a sum-certain damages claim.” GAF
Corp. v. United States, 818 F.2d 901, 920 (D.C. Cir. 1987).
According to the unrebutted declaration of Joan M. Hollenbach, the Managing Associate
General Counsel of the GAO and the head of the GAO’s Legal Services group, Duffy has not
filed any administrative FTCA claims with the GAO. See Dkt. 33-11 at 2. (Hollenbach Decl.
¶ 2); see also Herbert, 974 F.2d at 197 (permitting courts to consider outside evidence in
evaluating a motion to dismiss under Rule 12(b)(1)). Duffy did file an EEO complaint with
GAO, see Dkt. 33-7, but that complaint does not assert a tort claim and does not include a sum-
certain claim of damages, id. Because Duffy failed to make a “presentment” as required by
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§ 2675(a), the Court lacks jurisdiction to consider Duffy’s remaining tort claims. See GAF
Corp., 818 F.2d at 918 (“Presentment is mandatory” under the FTCA “to
determine . . . jurisdiction”).
The Court will, accordingly, dismiss all of Duffy’s common law tort claims for lack of
jurisdiction. See Fed. R. Civ. P. 12(b)(1).
D. Constitutional Claim
The GAO moves to dismiss Duffy’s Fifth Amendment due process claim (Count XV) on
the ground that the ADA “is the exclusive remedy” for claims alleging disability discrimination
or failure to accommodate a disability. Dkt. 33-1 at 19–20. Federal employees may not recast
Title VII claims as constitutional claims for employment discrimination. Ethnic Emps. of
Library of Congress v. Boorstin, 751 F.2d 1405, 1414–15 (D.C. Cir. 1985) (applying Brown v.
GSA, 425 U.S. 820, 832–33 (1976)). At the same time, however, the existence of a statutory
cause of action does not typically preclude claims that are not cognizable under the statute. In
Ethnic Employees of Library of Congress, for example, the D.C. Circuit dismissed constitutional
claims that merely restated claims that were cognizable under Title VII, but it allowed other
constitutional claims–including a due process claim—to proceed because Title VII did not
provide a remedy for those claims. Id. at 1415 (“Nothing in [Title VII’s] history even remotely
suggests that Congress intended to prevent federal employees from suing their employers for
constitutional violations against which Title VII provides no protection at all.”).
As drafted, Duffy’s second amended complaint does not clearly state a cognizable due
process claim. It is possible that Duffy could assert a due process claim that does not merely
replicate her ADA claims. But the problem is that she merely alleges that the GAO “deliberately
and without due process deprive[d] [her] of her property interest in her position as a
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Communications Analyst Band II” and that it “did so with the intention to so harm [her] that
should would have no resources with which to pursue a fair and just resolution of her
complaint.” Dkt. 31 at 102 (Second Am. Compl.). Because the Court cannot discern from these
bare allegations whether Duffy intends to allege a claim that differs from her ADA claims and, if
so, in what way the claims differ, the Court will dismiss Count XV pursuant to Federal Rule of
Civil Procedure 8. Rule 8 requires a plaintiff to plead facts sufficient to “give the defendant fair
notice of what that . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555
(quoting Conley, 355 U.S. at 47). As drafted, Count XV fails to provide the GAO or the Court
with sufficient notice of the grounds upon which the claim rests; the GAO cannot meaningfully
respond to it and the Court cannot determine whether it states a claim.
The Court will, accordingly, dismiss Count XV without prejudice.
E. Americans with Disabilities Act
Duffy asserts seven claims under the ADA, see Dkt. 31 at 87–95, which applies to the
GAO by virtue of 42 U.S.C. § 12209(1). Specifically, she brings ADA claims for disability
discrimination (Count I), hostile work environment (Count II), denial of a reasonable
accommodation (Count III), disability discrimination on the basis of mental illness (Count IV),
disability harassment (Count V), disparate treatment (Count VI), and retaliation (Count VII). See
Dkt. 31 at 87–95. The GAO moves to dismiss each of these claims on the basis that Duffy did
not exhaust her administrative remedies and also moves to dismiss Duffy’s hostile work
environment claim for failure to state a claim. Dkt. 33-1 at 20–23. In the alternative, the GAO
seeks partial summary judgment on Duffy’s reasonable-accommodation claim. Id. at 23–26.
16
1. Exhaustion
“Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must
exhaust their administrative remedies.” 2 Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098
(D.C. Cir. 1997) (citing 42 U.S.C. § 12117(a); Park v. Howard Univ., 71 F.3d 904, 907–09 (D.C.
Cir. 1995)). But because the GAO is an agency of the legislative branch of the U.S. government,
see Bowsher v. Synar, 478 U.S. 714, 731–32 (1986), the usual procedures for exhausting
administrative remedies for ADA claims against private employers do not apply, see 42 U.S.C.
§ 12111(5)(B) (“The term ‘employer’ does not include . . . the United States.”). Congress,
instead, provided that employees of the GAO may invoke the enforcement mechanisms typically
available for ADA cases, “except that the authorities of the Equal Employment Opportunity
Commission shall be exercised by the chief official of the” GAO. 42 U.S.C. § 12209(5); see
2
Lack of exhaustion under the ADA is an affirmative defense, which the defendant has the
burden of proving. Adams v. District of Columbia, 740 F. Supp. 2d 173, 185 (D.D.C. 2010)
(citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)). Ordinarily, a party seeking to assert
an affirmative defense must wait to do so until a motion for summary judgment; plaintiffs are not
required to anticipate affirmative defenses and to plead facts sufficient to avoid those defenses,
and thus a defendant cannot move to dismiss under Rule 12(b)(6) on the mere ground that the
complaint fails to allege facts that, if taken as true, would overcome the affirmative defense. See
Wright & Miller, Federal Practice and Procedure § 1277; see also Jones v. Bock, 549 U.S. 199,
216 (2007) (clarifying that where exhaustion is non-jurisdictional, plaintiffs “are not required to
specially plead or demonstrate exhaustion in their complaints”). But if the complaint itself
alleges facts that establish the affirmative defense, the defendant may rely on those factual
allegations to support a motion to dismiss under Rule 12(b)(6). See Calderon v. Berryhill, No.
17-cv-494, 2019 WL 4575605, at *4 (D.D.C. Sept. 20, 2019). The defendant prevails, however,
only if the validity of the affirmative defense is evident on the face of the complaint. See Smith–
Haynie v. District of Columbia, 155 F.3d 575, 578–79 (D.C. Cir. 1998). Here, because the GAO
moves in the alternative for summary judgment, the Court may consider the administrative
materials attached to its motion. But, because the GAO does not include assertions of fact
relating to exhaustion in its statement of undisputed material facts, Dkt. 33-2, the Court limits its
analysis to the allegations contained in the second amended complaint.
17
also 31 U.S.C. § 732(a). Under GAO regulations, a “charge alleging prohibited discrimination”
in violation of the ADA is subject to “GAO Order 2713.2.” 4 C.F.R. § 28.98(a). Under that
Order, in turn, “[a]n aggrieved person must contact an O&I counselor within 45 days of the date
of the matter alleged to be discriminatory.” Dkt. 33-6 at 9. Subject to certain exceptions, the
O&I counselor then has 30 days to conduct a final interview with the aggrieved person, and, “[i]f
the matter has not been resolved to the satisfaction of the aggrieved person, that person [must] be
informed . . . of the right to file [an administrative] discrimination complaint” within fifteen
“days of receipt of the notice.” Id. at 10–11. “[T]he procedural requirements of . . . the ADA
. . . must be assessed on a claim-by-claim basis and . . . satisfaction of the procedural
requirements for a ‘relate[d]’ act of discrimination is insufficient, except in those cases in which
the ‘very nature’ of the claim ‘involves repeated conduct.’” Hargrove v. AARP, 205 F. Supp. 3d
96, 119 (D.D.C. 2016) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–15
(2002)).
Here, Duffy alleges that she first sought EEO counseling on October 23, 2015, Dkt. 31 at
70 (Second Am. Compl. ¶ 196), and that she filed her formal EEO complaint through O&I on
February 4, 2016, asserting a hostile work environment claim and a failure to accommodate
claim, id. at 76 (Second Am. Compl. ¶ 223). As explained below, these steps were sufficient to
preserve Duffy’s hostile work environment claim and at least a portion of her failure to
accommodate claim. They were not sufficient, however, to preserve her ADA retaliation claim.
Counts II and V of the second amended complaint both allege that Duffy was subjected
to a hostile work environment because of her disability. Dkt. 31 at 88–89, 91–92. As the
Supreme Court has explained, the “very nature” of a hostile work environment claim “involves
repeated conduct.” Morgan, 536 U.S. at 115. As a result, as long as one “act contributing to the
18
claim” took place within the statutory period—here, within 45 days of Duffy seeking EEO
counseling—“the entire period of the hostile environment may be considered for the purposes of
determining liability.” Id. at 117. And, here, Duffy’s O&I complaint contains allegations that
Marks made derogatory comments about her disability during a meeting on October 22, 2015—
the day before she first contacted the O&I counselor. See Dkt. 31 at 65–70 (2d Am. Compl. ¶
190–96). Accordingly, the Court rejects the GAO’s argument that “Plaintiff has . . . failed to
exhaust her administrative remedies for any action that occurred prior to September 8, 2015,
which was 45 days before Plaintiff initiated her EEO claim.” Dkt. 33-1 at 21. Under settled law,
the Court must consider events that occurred outside the 45-day window for initiating the O&I
counseling process, so long as those events are “part of the same actionable hostile work
environment” as Marks’s conduct in the October 22, 2015 meeting. Morgan, 536 U.S. at 120.
Because the GAO has made no argument about which allegations or actions predating September
8, 2015 it seeks to preclude the Court from considering, the Court will deny the GAO’s motion
to dismiss any portion of Duffy’s hostile work environment claims for failure to exhaust
administrative remedies.
Plaintiff’s denial of reasonable accommodation (Count III) and disparate treatment
(Count VI) claims, Dkt. 31 at 89–90, 92–94, in contrast, are not the type of claims that by their
“very nature” “involve[] repeated conduct.” Morgan, 536 U.S. at 115; see Owens-Hart v.
Howard Univ., 220 F. Supp. 3d 81, 93 (D.D.C. 2016) (explaining that each denial of an
accommodation is a separate “discrete act”); Panarello v. Zinke, 254 F. Supp. 3d 85, 102–03
(D.D.C. 2017) (describing incidents of disparate treatment as discrete acts). The GAO argues
that at least some conduct that might be relevant to those claims occurred either before
September 8, 2015 or after Duffy submitted her O&I complaint in February 2016. See Dkt. 33-1
19
at 20–23. Accordingly, if Duffy’s claims depended on that conduct, the Court would be required
to dismiss those claims for failure to exhaust. But Duffy’s claims do not depend on conduct
occurring outside the exhaustion window. She alleges, for example, that she submitted requests
for accommodation in both October and November 2015 and that both requests were denied.
Dkt. 31 at 64–65 (Second Am. Compl. ¶¶ 187, 190) (October 2015 request); id. at 72 (Second
Am. Compl. ¶¶ 204–06) (November 2015 request). She also alleges that, during that period,
non-disabled employees were permitted to work from an alternate location eight out of every ten
workdays but that she was not. Id. at 94 (Second Am. Compl.) And, she alleges that she
complained of those denials in her EEO counseling and formal complaint. Id. at 70, 76 (Second
Am. Compl. ¶¶ 196, 223). The Court, accordingly, cannot dismiss Duffy’s failure to
accommodate or disparate treatment claims because she has alleged at least one theory
supporting relief for each claim that is premised on conduct that she timely raised in the
administrative EEO process.
The Court agrees with the GAO, however, that Duffy failed to exhaust her administrative
remedies with respect to her retaliation claim (Count VII). Id. at 94 (Second Am. Compl.). Even
as described by Duffy herself in the second amended complaint, Duffy’s O&I complaint did not
include allegations of unlawful retaliation. Nor can the Court conclude that Duffy’s
administrative allegations of harassment and failure to accommodate were sufficient to
encompass her claim for retaliation. As this Court has previously explained in Hargrove v.
AARP, 205 F. Supp. 3d 96 (D.D.C. 2016), prior to the Supreme Court’s decision in National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the D.C. Circuit “permitted a Title
VII plaintiff—and by implication, and an ADA plaintiff to bring a lawsuit asserting claims that
were administratively exhausted or that were ‘like or reasonably related to the allegations’
20
contained in the administrative complaint or ‘growing out of such allegations.’” Hargrove, 205
F. Supp. 3d at 118 (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)) (other
internal citations omitted). Morgan, however, put an end to the “reasonably related” rule, and an
ADA plaintiff must now timely exhaust administrative remedies with respect to claims—unlike
hostile workplace claims—premised on “discrete acts of discrimination.” Id. at 119 (citing
Morgan, 536 U.S. at 113). Here, because Duffy’s O&I complaint was limited to hostile
workplace and failure to accommodate claims, she cannot now assert a separate—and
unexhausted—claim for retaliation. 3
The Court will, accordingly, dismiss Duffy’s retaliation claim (Count VII) for failure to
exhaust her administrative remedies.
2. Hostile Workplace Claim
The GAO also moves to dismiss Duffy’s ADA hostile workplace claims (Counts II and
V), Dkt. 31 at 88–89, 91–92 (Second Am. Compl.), for failure to state a claim. Dkt. 33-1 at 26–
29. Although the D.C. Circuit has yet to decide the question, several other circuits and numerous
decisions from this Court have held that hostile workplace claims are cognizable under the ADA.
See Lanman v. Johnson Cnty., Kansas, 393 F.3d 1151, 1155–56 (10th Cir. 2004); Shaver v.
Indep. Stave Co., 350 F.3d 716, 719–20 (8th Cir. 2003); Flowers v. S. Reg’l Physician Servs.,
Inc., 247 F.3d 229, 232–35 (5th Cir. 2001); Webster v. U.S. Dep’t of Energy, 267 F. Supp. 3d
246, 260 (D.D.C. 2017); Ham v. Ayers, No. 15-1390, 2019 WL 1202453, at *5 (D.D.C. Mar. 14,
2019); Aldrich v. Burwell, 197 F. Supp. 3d 124, 135 (D.D.C. 2016). Because the GAO does not
3
The Court also notes that Duffy was represented by counsel at the time she filed her
administrative complaint and that, as a result, her failure to include a claim for retaliation was not
merely a mistake of nomenclature by someone untrained in the law. Dkt. 33-8 at 5–13.
21
dispute this premise, the Court will proceed on the assumption that the ADA authorizes recovery
for hostile workplace claims.
To state a hostile workplace claim, an ADA plaintiff must allege that “(1) she is disabled
or is perceived as disabled; (2) she was subjected to unwelcome harassment; (3) the harassment
occurred because of her disability or the perception that she was disabled; (4) the harassment
affected a term, condition, or privilege of employment; and (5) there is a basis for holding the
employer liable for the creation of the hostile work environment.” Floyd v. Lee, 968 F. Supp. 2d
308, 328 (D.D.C. 2013). In evaluating this type of claim, the Court “looks to the totality of the
circumstances, including the frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s work performance.” Id. (quoting
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (per curiam)).
The GAO contends that the only factual allegations that even arguably support Duffy’s
hostile workplace claim are those involving the comments that Marks and Briscoe purportedly
made during the October 2015 meeting. Dkt. 33-1 at 28. As Duffy describes those remarks,
they were at times mocking and snide, suggested that Duffy was lying about her disability, and,
more significantly, conveyed a threat that Duffy would risk revealing her “mental disorder” to
the Comptroller of the United States and other senior officials if she insisted on pursuing her
request for an accommodation. Dkt. 31 at 65–68 (Second Am. Compl. ¶ 190). Even assuming
that Marks and Briscoe made these comments, the GAO maintains, Duffy’s claim fails because a
single conversation “fails to show the requisite ‘cumulative effect’ necessary to state a claim for
a hostile work environment.” Dkt. 33-1 at 28 (quoting Baird v. Gotbaum, 792 F.3d 166, 168
(D.C. Cir. 2015)).
22
According to Duffy, this allegedly caustic conversation forms only a part of her
harassment claim. Rather, in her view, her hostile workplace claim (Count II) Dkt. 31 at 88–89
(Second Am. Compl.), is predicated on a broader array of events. She argues:
[T]he totality of circumstances show that GAO Management hired [her] for an
ad-hoc Communications “analyst-in-name-only” position in which she was
subjected to pervasive ridicule, insult, and intimidation that was frequent,
offensive, interfered with [her] work performance, altered the conditions of her
employment, was connected to her membership in a protected class, and
ultimately, damaged her health, interfered with her career, and resulted in her
resignation.
* * *
[She was] [s]ubjected to chaotic, dysfunctional working conditions where her
work product could be rejected or appropriated at the convenience of others;
routinely denied development and promotion opportunities commensurate with
her professional attainments while being encouraged not to quit her job;
passively denied the opportunity to engage in assignments more appropriate to
her abilities due to an imbalance of entry level work which could have been
equitably and easily reassigned; denied the tools to adequately perform her
duties at the standard her training and expertise warranted, and—once she was
known to have useful skills—subjected to extreme overwork that, in spite of
her best efforts to manage it, eventually contributed to a serious breakdown of
her physical health.
Dkt. 37 at 30. Duffy further alleges that, during the Alternative Dispute Resolution (“ADR”)
process that was initiated after she filed her O&I complaint, “Marks . . . expressed contempt
toward [Duffy], and continued to make . . . false statements about her [Reasonable
Accommodation] request and her disability.” Dkt. 31 at 74 (Second Am. Compl. ¶ 216). Even
after the ADR process, Duffy contends that Marks continued to harass her, id. at 75 (Second Am.
Compl. ¶ 218), and that “she had no choice but to submit to further harassment by Marks if she
wished to be accommodated for her disability,” id. (Second Am. Compl. ¶ 221). In sum, her
claims turn on the October 2015 meeting and on a pattern of contemptuous treatment and
23
failures to grant her reasonable accommodations, which ultimately led to her constructive
discharge.
Duffy’s allegations that she was subjected to “ridicule, insult, and intimidation that was
frequent, offensive, interfered with [her] work performance, id. at 91 (Second Am. Compl.),” and
that Marks “expressed contempt toward” her during the ADR process and continued to “harass”
her after it concluded, id. at 74–75 (Second Am. Compl. ¶¶ 216–18), are conclusory and
unsupported by the type of concrete factual allegations necessary to state a claim under Federal
Rules of Civil Procedure 8 and 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009);
Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 71 (D.D.C. 2011) (“Plaintiff’s statement
that she was ‘mistreated, harassed, intimidated[,] and disrespected’ by her supervisor and co-
workers . . . is nothing more than a legal conclusion.”); Aldrich v. Burwell, 197 F. Supp. 3d 124,
137–38 (D.D.C. 2016) (finding allegations of “‘rude, hostile, and otherwise demeaning
treatment’ . . . too vague and conclusory to meaningfully contribute to” the plaintiff’s hostile
work environment claim). For purposes of determining whether the second amended complaint
states a claim of workplace harassment, the Court must, instead, focus on Duffy’s factual
allegations of specific, offensive workplace conduct.
Putting Duffy’s conclusory allegations aside, she fails to allege facts sufficient to state a
hostile workplace claim. To state a claim based on a hostile workplace, the plaintiff must allege
facts that, if accepted as true, would show that her employer subjected her to discriminatory
harassment that was “sufficiently severe or pervasive to alter the conductions of the victim’s
employment and create an abusive working environment.” Baloch v. Kempthorne, 550 F.3d
1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). This
is not a “mathematically precise test,” Harris, 510 U.S. at 22, but, rather, requires courts to
24
consider factors such as “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,” id. at 23. The standard is a “demanding” one,
however, in order to avoid turning federal antidiscrimination statutes into codes of “general
civility.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (second quote quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).
It follows that “isolated incidents (unless extremely serious) will not amount to” a hostile
work environment, id., and that “the more severe the harassment, the less pervasive it needs to
be, and vice versa,” Jimenez v. McAleenan, No. 17-cv-2731, 2019 WL 3935182, at *7 (D.D.C.
Aug. 20, 2019) (quoting Ayissi-Etoh, 712 F.3d at 579)). It is extremely rare that a single incident
is sufficiently severe to rise to the level of a hostile work environment, Stewart v. Evans, 275
F.3d 1126, 1134 (D.C. Cir. 2002), although even a single, extraordinarily offensive or demeaning
assertion might suffice, see, e.g., Ayissi-Etoh, 712 F.3d at 580 (Kavanaugh, J., concurring)
(“[B]eing called the n-word by a supervisor [on one occasion] . . . suffices by itself to establish a
racially hostile work environment”).
Duffy has failed to allege facts sufficient to meet this “demanding” test. To be sure,
Marks’s disparaging comments were not words alone, without tangible consequence—they were
accompanied by alleged denials of Duffy’s requests for reasonable accommodation. But Courts
in this district “frown[] on plaintiffs who attempt to bootstrap their alleged discrete acts of
retaliation” or other employment discrimination “into a broader hostile work environment
claim.” Thomas v. Securiguard Inc., No. 18-0125, 412 F. Supp. 3d 62, 91 (D.D.C. 2019)
(quoting Mason v. Geithner, 811 F. Supp. 2d 128, 177 (D.D.C. 2011)). To be sure, “[t]he
prolonged denial of a reasonable accommodation can underlie a hostile work environment claim
25
when ‘all the circumstances’ would support such a claim.” Floyd v. Lee, 85 F. Supp. 3d 482, 518
(D.D.C. 2015) (emphasis added) (quoting Oncale, 523 U.S. at 81). But, here, Duffy’s own
allegations show that the GAO allowed her to telework for extended periods of time, see, e.g.,
Dkt. 31 at 54–55 (Second Am. Compl. ¶ 158), and the overall “circumstances” alleged in the
second amended complaint do not meet the standard for either severity or pervasiveness
necessary to state a claim based on a hostile workplace. Although the Court does not doubt that
Duffy’s interactions with Marks and Briscoe were both objectively and subjectively upsetting,
the second amended complaint fails to identify the type of “severe or pervasive” hostility or
abuse necessary to state this type of claim. See Achagzai v. Broadcasting Bd. of Governors, 170
F. Supp. 3d 164, 184 (D.D.C. 2016) (quoting Harris, 510 U.S. at 21).
Accordingly, the Court will dismiss Duffy’s hostile workplace environment claim for
failure to state a claim.
3. The GAO’s Motion for Summary Judgment
Finally, GAO moves for summary judgment with respect to Duffy’s ADA claims (Counts
I–VII), Dkt. 31 at 87–95 (Second Am. Compl.), on the ground that she abandoned each of her
requests for a reasonable accommodation. Dkt. 33-1 at 13, 23–26. When considering a motion
for summary judgment, unlike a motion to dismiss, the Court may consult evidence outside the
pleadings to determine whether a genuine issue of material fact exists. See Fed. R. Civ. P. 56(a),
(c). Because the Court has already concluded that Duffy has exhausted her administrative
remedies only with respect to her October 2015 and November 2015 requests for a reasonable
accommodation, the Court considers the GAO’s motion for summary judgment with respect to
only those requests. Moreover, because Duffy brings just one claim for failure to accommodate
(Count III) relying on both requests, Dkt. 31 at 89–90 (Second Am. Compl.), the GAO must
26
show that both requests were abandoned to obtain summary judgment on that claim. After
reviewing the still-developing record, the Court concludes that the “issues need further
development” and thus exercises its “discretion to deny [the] motion for summary judgment
without prejudice.” 10A Wright & Miller, Federal Practice and Procedure § 2718 (4th ed. 2019).
The GAO argues that Duffy abandoned her request for a reasonable accommodation
because she refused to engage in the “interactive process” contemplated by the ADA. See Ward
v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (describing the “interactive process” as “‘a
flexible give-and-take’ between employer and employee ‘so that together they can determine
what accommodation would enable the employee to continue working’” (quoting EEOC v.
Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005)). With respect to Duffy’s October
2015 request, the GAO contends that Duffy stopped participating in the interactive process when
she requested that “all further action on [her] [Reasonable Accommodation] request be stopped,
pending an EEO complaint.” Dkt. 33-1 at 23–26; Dkt. 33-2 at 1 (Def.’s SUMF ¶ 4); Dkt. 33-5 at
2;
But, Duffy claims that it takes two to tango and the GAO was an unwilling dance partner.
She alleges that, during the October 22, 2015 meeting, Marks verbally denied Duffy’s October
2015 request; refused to provide her with “[a]gency guidance related to . . . standards for
administering” reasonable accommodation requests; and made statements designed to intimidate
and to discourage Duffy from seeking review of Marks’s decision. Dkt. 31 at 65–69 (Second
Am. Compl. ¶ 190). Duffy alleges, for example, that when she inquired about the basis for
Marks’s denial of her request, Marks said the request could go to the Accommodations
Committee but then admonished Duffy: “let me tell you what is going to happen if I do that. The
Comptroller of the United States—and several members of the Executive Committee—are going
27
to learn all about your ‘mental disorder.’ Would you like me to do that?” Id. at 66 (Second Am.
Compl. ¶ 190). Duffy further alleges that, at various points, Marks refused to explain why she
was not crediting the medical evidence and other documentation that Duffy had provided in
support of her request. See id. at 65–68 (Second Am. Compl. ¶ 190).
The “interactive process” used to determine whether an accommodation is necessary and
appropriate depends on the good faith participation of both the employer and employee; “neither
party should be able to cause a breakdown in the process for the purpose of either avoiding or
inflicting liability.” Sears, Roebuck & Co., 417 F.3d at 805 (quoting Beck. v. Univ. of Wisconsin
Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)). It follows that, if an employer participates
in the “interactive process” in “bad faith,” the employer may be deemed to have denied the
accommodations request. Ward, 762 F.3d at 32. That bad faith may take the form of
“obstruct[ion] or delays [in] the interactive process” or “fail[ure]s to communicate” with the
other party, because such actions are the “cause of the breakdown” in the process. Id. (quoting
Sears, Roebuck & Co., 417 F.3d at 805). By that same logic, bad faith may also take the form of
threats or other actions taken solely for the purpose of discouraging an employee from pursuing a
request for an accommodation.
The GAO may be right that Duffy is to blame for the breakdown in the interactive
process; the record contains evidence that she expressly abandoned her request for an
accommodation. See, e.g., Dkt. 33-5 at 2 (“At this time . . . I have asked that all further action on
my RA request be stopped, pending an EEO complaint”). But it is also possible that Marks
erected insuperable hurdles to the process or otherwise obstructed Duffy’s efforts to seek an
accommodation. As Duffy explained in a memorandum to Marks, she “believe[d] that the
communication dynamics within the GAO’s [Reasonable Accommodation] office [were]
28
sufficiently dysfunctional as to make GAO’s [Reasonable Accommodation] process
administratively ineffective and medically unsafe for [her] to participate in.” Id. Duffy further
posited that she had already submitted documentation sufficient to support her request and that
Marks and Briscoe responded in a manner that left her convinced that the process was
“hopelessly tainted with bias and discrimination against [her] based on the nature of [her]
disability.” Id. at 8.
On the present record, the Court cannot decide who is right—and certainly cannot do so
with the certainty required to resolve a claim on summary judgment before potentially relevant
discovery is complete. The Court will, accordingly, deny the GAO’s motion for summary
judgment without prejudice and will allow the parties to take additional discovery regarding the
“interactive process.”
F. Rehabilitation Act
The Court turns finally to the GAO’s challenge to Duffy’s sole claim for relief under the
Rehabilitation Act (Count VIII), which alleges that Duffy was denied a reasonable
accommodation and was constructively discharged as a result of the GAO’s unlawful disability
discrimination. Dkt. 31 at 95–96. The GAO contends that this claim should be dismissed
because the Rehabilitation Act does not apply to the GAO, Dkt. 33-1 at 14, or, in the alternative,
because Duffy failed to exhaust her administrative remedies, id. at 20–23. Because the Court
agrees with the first of these contentions, it does not reach the second.
The Court begins its interpretation of the Rehabilitation Act with the text of the statue.
See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). The Rehabilitation Act
provides, in relevant part, that otherwise qualified individuals with disabilities, may not “be
excluded from the participation in, be denied the benefits of, or be subjected to discrimination
29
under any program or activity receiving Federal financial assistance or under any program or
activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C.
§ 794(a). The GAO is not an “Executive agency,” see Chennareddy v. Bowsher, 935 F.2d 315,
319 (D.C. Cir. 1991); see also 31 U.S.C. § 702(a) (the GOA is an “instrumentality of the United
States Government independent of the executive departments”), nor is it a “program or activity
conducted by an Executive agency” or a “program or activity receiving Federal financial
assistance,” 29 U.S.C. § 794(a). Although the GAO, like all government offices, operates
pursuant to a congressional appropriation of funds, that does not mean that it is a “program or
activity receiving Federal financial assistance” or else there would be little reason to specify
separately that “programs or activities conducted by” the Executive branch are covered by the
Rehabilitation Act. See Corley v. United States, 556 U.S. 303, 314 (2009) (rejecting an
interpretation that was “at odds with one of the most basic interpretive canons, that ‘[a] statute
should be construed so that effect is given to all its provisions, so that no part will be inoperative
or superfluous, void or insignificant’” (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)
(alternation in original)). The text of the Rehabilitation Act itself, therefore, does not reach the
GAO.
To be sure, Congress did extend the Rehabilitation Act to apply “to the legislative branch
of the Federal Government” when it enacted the Congressional Accountability Act (“CAA”).
See 2 U.S.C. §1302(a). But, in so doing, Congress provided the protections of the Rehabilitation
Act and other statutes only to “covered employee[s],” which the CAA defines as “any employee
of” eleven different enumerated government entities. 2 U.S.C. § 1301(a)(3). The GAO does not
appear on that list. Id. The Court recognizes that other provisions of the U.S. Code treat the
GAO as an “instrumentality of Congress.” 42 U.S.C. § 12209(4); see also Chennareddy, 935
30
F.3d at 319 (“GAO is a legislative branch agency . . . .”). Had Congress incorporated that
definition in the CAA, or had it merely directed that the CAA would apply to the “legislative
branch” of the government, the GAO’s status as a legislative branch agency might have been
enough to extend the Rehabilitation Act to the GAO. See Ethyl Corp. v. EPA, 51 F.3d 1053,
1061 (D.C. Cir. 1995) (“[M]ention of one thing implies the exclusion of another” (quoting Am.
Methyl Corp. v. EPA, 749 F.2d 826, 835–36 (D.C. Cir. 1984)).
Finally, the Court notes that the statute creating the GAO provides that “all laws
generally related to administering an agency apply to the Comptroller General.” 31 U.S.C.
§ 704(a). Similarly, the GAO’s personnel statute provides that its provisions “do not affect a
right or remedy of an officer, employee, or applicant for employment under a law prohibiting
discrimination in employment in the Government on the basis of . . . [a] handicapping
condition.” 31 U.S.C. § 732(f)(2). Those general provisions, however, cannot override
Congress’s exclusion of the GAO from its extension of the Rehabilitation Act to specific
instrumentalities of Congress. “Where there is no clear intention otherwise, a specific statute
will not be controlled or nullified by a general one, regardless of the priority of enactment.”
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (quoting Radzanower v.
Touche Ross & Co., 426 U.S. 148, 153 (1976)). Nothing in the laws that, in general, govern the
administration of the GAO conveys a “clear intention” to override either the Rehabilitation Act
or the CAA.
The Court will, according, dismiss Duffy’s Rehabilitation Act claim pursuant to Rule
12(b)(6).
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CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss for lack of subject-matter
jurisdiction and failure to state a claim, and in the alternative, motion for summary judgment,
Dkt. 33, is hereby GRANTED in part and DENIED in part.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 21, 2020
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