Von Drasek v. Burwell , 121 F. Supp. 3d 143 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SUSAN VON DRASEK, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-cv-0847 (KBJ)
)
SYLVIA BURWELL, )
)
Defendant. )
)
MEMORANDUM OPINION AND ORDER
The United States Food and Drug Administration (“FDA”) fired Plaintiff Susan
Von Drasek from her job as an FDA chemist, after repeated warnings about her
unsatisfactory performance. Von Drasek has bipolar disorder, and she has brought the
instant action against the FDA under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791–
794f, claiming that her discharge violates that statute. Von Drasek’s complaint makes
three specific claims: (1) that the FDA failed to accommodate her disability; (2) that the
FDA intentionally discriminated against her by terminating her employment because of
her disability; and (3) that the FDA discharged her in retaliation for her request for
accommodations.
Before this Court at present are the FDA’s motion to dismiss, or in the
alternative, motion for summary judgment (Mot. to Dismiss or, in the Alternative, for
Summ. J. (“Def.’s Mot.”), ECF No. 7), and Von Drasek’s cross-motion for summary
judgment (Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 10). 1 The FDA
argues that Von Drasek did not timely inform the agency of her need for any
accommodations, and that, in any event, she has not established a prima facie case to
support her failure-to-accommodate claim. (See Mem. in Supp. of Def.’s Mot. (“Def.’s
Mem.”), ECF No. 7, at 14-17.) 2 Moreover, the FDA argues that Von Drasek has failed
to raise any genuine issue of fact regarding the intentional discrimination and
retaliation claims, because the evidence demonstrates that her termination was the result
of non-discriminatory and non-retaliatory factors. (Id. at 17-18.) For her part, Von
Drasek argues that she is entitled to summary judgment on the failure-to-accommodate
claim because her request for accommodations was timely and it is undisputed that the
FDA failed to reassign her as requested, in violation of its obligations under the
Rehabilitation Act. (See Pl.’s Opp’n to Def.’s Mot. & in Supp. of Pl.’s Mot. (“Pl.’s
Mem.”), ECF No. 10-1, at 10-11, 21-22.) Von Drasek also argues that she is entitled to
summary judgment on her intentional discrimination and retaliation claims because she
has direct evidence of the FDA’s discriminatory and retaliatory animus. (Id. at 35-39.)
As explained fully below, this Court finds that Von Drasek’s request for
accommodations was quite late, and perhaps irresponsibly so, but was timely
nevertheless because the FDA had not yet terminated Von Drasek’s employment when
it received her request, and thus the agency was still in a position to respond to it.
However, because genuine issues of material fact remain regarding whether or not Von
1
The FDA is a sub-agency of the United States Department of Health and Human Services (“HHS”),
and Von Drasek initially properly filed this action against former HHS Secretary Kathleen Sebelius, in
her official capacity. Current HHS Secretary Sylvia Burwell has been substituted as the defendant
pursuant to Federal Rule of Civil Procedure 25(d); hereinafter, the Court will refer to the FDA, and not
Secretary Burwell, as “Defendant.”
2
Page numbers throughout refer to the numbers that the Court’s electronic filing system assigned.
2
Drasek could have performed the essential functions of her job if she was reassigned as
requested, entry of summary judgment in either party’s favor is unwarranted. With
respect to Von Drasek’s intentional discrimination and retaliation claims, this Court
will enter judgment in favor of the FDA because the Rehabilitation Act requires that the
alleged discrimination or retaliation be the sole reason for the adverse employment
action, and given the record here, no reasonable jury could conclude that animus
regarding Von Drasek’s request for accommodation and/or her underlying disability
were the but-for cause of her final removal.
Accordingly, and for the reasons that follow, the FDA’s motion to dismiss, or in
the alternative, motion for summary judgment is GRANTED IN PART and DENIED
IN PART, and Von Drasek’s cross-motion for summary judgment is DENIED.
I. BACKGROUND
A. Facts
The underlying facts of this case are largely undisputed. In 1978, Von Drasek
was diagnosed with a type of bipolar disorder that produces symptoms such as
depression and anxiety, and that “substantially limits major life activities, including
sleeping, thinking and concentrating, processing information, impulse control, [and]
cognitive abilities[.]” (Compl., ECF No. 1, ¶¶ 21–22; see also Pl.’s Ex. 4, Pl.’s Request
for Reasonable Accommodation (“Pl.’s Reas. Acc. Req.”), ECF No. 10-6, at 4.) 3
Despite this diagnosis, Von Drasek apparently has enjoyed a lengthy and seemingly
generally successful career as a chemist. The complaint extolls Von Drasek’s
3
The exhibits that are attached to Plaintiff’s Cross-Motion for Summary Judgment and Defendant’s
Motion for Summary Judgment are referred to herein as “Pl.’s Ex. __” or “Def.’s Ex. __,” respectively.
3
accomplishments in the field, including a graduate degree in geochemistry, six
publications, and awards and commendations for her performance. (Compl. ¶ 15; see
also Pl.’s Ex. 1, Pl.’s Resume (“Resume”), ECF No. 10-3, at 5-10.) Furthermore,
before joining the FDA, Von Drasek worked for eight years at the United States
Department of Agriculture (“USDA”), where she consistently received “Fully
Successful” performance ratings. (Compl. ¶ 18.) According to Von Drasek, she left her
post at the USDA only because the particular chemist position that she held was capped
at a lower salary and performance level, meaning there was no room for promotion.
(Compl. ¶ 19; see also Pl.’s Ex. 3, Aff. of Susan Von Drasek (“Van Drasek Aff.”), ECF
No. 10-5, ¶ 2.)
Von Drasek began working as a chemist for the FDA on April 13, 2008. (Compl.
¶ 20; Def.’s Stmt. of Undisputed Material Facts (“Def.’s Facts”), ECF No. 7, ¶ 1.)
Significantly, Von Drasek did not inform anyone at the FDA of her bipolar condition
diagnosis, nor did she request any accommodations at the time she began her tenure at
FDA. (See Def.’s Facts ¶ 4.) By August of 2009, Von Drasek began having difficulty
at work, and as a result, she sought private medical attention. (Pl.’s Reas. Acc. Req. at
4.) Once again, Von Drasek did not share with anyone at the FDA that she sought and
was receiving medical attention for her previously diagnosed bipolar condition. (See
Def.’s Facts ¶ 4.)
1. The Performance Improvement Plan
On April 1, 2010, Von Drasek’s immediate supervisor, Rachel Dietzel, issued a
Performance Improvement Plan (“PIP”) (id. ¶ 23), which is a document that advised
Von Drasek that her on-the-job performance was unacceptable and that she had 75 days
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to improve her work. (See Def.’s Ex. 1, Performance Improvement Plan (“PIP”), ECF
No. 7-1, at 2.) The PIP stated that Von Drasek’s performance had failed to meet
minimally acceptable levels in two respects. First, according to the PIP, Von Drasek
had failed to demonstrate technical knowledge and competency in her field throughout
2009 “because the technical quality of [her] work product [was] significantly lacking
despite the amount of time [she] devoted to using instrumentation[,]” and she “lack[ed]
the more advanced comprehension of what” she was doing. (Id. at 2–3.) Second, the
PIP stated that Von Drasek failed in “program and project management and
performance[,]” given the “repeated deficiencies” in her analyses. (Id. at 3.) The PIP
highlighted that Von Drasek “either [did] not seek guidance, or [was] not capable of
recognizing when [she] need[ed] assistance” (id.), and that she “repeatedly failed to
meet deadlines” (id.). The PIP also described what Von Drasek needed to do in order to
bring her performance up to the “minimally successful” threshold, gave her 75 days to
improve, and specifically warned her that failure to improve could lead to demotion or
removal. (Id. at 6.)
On September 29, 2010—more than 180 days after she received the PIP
document—Von Drasek contacted her treating physician, Dr. Jayashree Coca, M.D.,
M.P.H., and asked her to fill out a Family Medical Leave Act (“FMLA”) form. (Compl.
¶ 24.) Dr. Coca completed the form as requested, identifying Von Drasek’s bipolar
diagnosis. (Id. ¶¶ 24 -25; see also Pl.’s Ex. 5, ECF No. 10-7, at 1.) However, Von
Drasek did not give the FMLA form to Dietzel or to anyone else at the FDA before
Dietzel once again contacted Von Drasek regarding her poor performance.
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2. Proposed Removal And Request for Accommodation
This next contact took place on October 1, 2010, exactly six months after the PIP
issued. Dietzel informed Von Drasek that her performance still had not improved and
that Dietzel was proposing her removal. (Compl. ¶ 25; see also Def.’s Ex. 2, Proposal
to Remove (“Prop. to Remove”), ECF No. 7-1, at 8-14.) Four days later, on October 5,
2010, Von Drasek notified Dietzel that she had a disability; that she was in the process
of getting her FMLA paperwork together; and that she was requesting accommodations.
(Compl. ¶ 26; Def.’s Ex. 3, ECF No. 7-1, at 16.) This was the first time that Von
Drasek had disclosed the fact of her disability to anyone at the FDA, and it was her first
request for accommodation. Von Drasek followed up on October 8, 2010, by
submitting the FMLA paperwork that Dr. Coca had completed. (Compl. ¶ 27.) Then,
on October 13, 2010, Von Drasek wrote to both Diezel and the FDA’s Labor and
Employee Relations Specialist—through counsel—“to address issues involving the
proposed removal and to reiterate Plaintiff’s request for accommodation.” (Id. ¶ 28; see
also Pl.’s Ex. 7, ECF No. 10-9, at 1-2 (letter from counsel requesting an extension of
time to respond to the proposed removal because Von Drasek was waiting for additional
information from Dr. Coca).)
Over the next few weeks, Von Drasek’s attorney contacted the FDA’s reasonable
accommodations specialist to ascertain the agency’s process for requesting
accommodations. (Compl. ¶ 29). Thereafter, on November 4, 2010, Von Drasek
submitted a formal, written request for accommodation, which included a letter from
Dr. Coca detailing the symptoms of Von Drasek’s disability and its effect on her job
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performance. (Compl. ¶ 29; see also Pl.’s Reas. Acc. Req. at 4-5.) Specifically, Dr.
Coca explained that
Von Drasek came to see me because she was having difficulties
at work. Because of [her] bipolar disorder, she can become easily
overwhelmed and confused. When she feels overwhelmed, her
anxiety is heightened, and she can face difficulty processing
information. This can lead to mistakes being made and an
inability to follow through or to request assistance. For example,
when Ms. Von Drasek is in a heightened state of anxiety, it can
be exceedingly difficult for her to hear and understand
instructions, to remember instructions, to comprehend
instructions, and to follow instructions. This makes it extremely
difficult for [her] to meet tight deadlines. If she is anxious and
rushing, she may not take the time to obtain information she
needs to successfully complete the assignment. It can also cause
her to fear and avoid interacting with others. In short, . . . Von
Drasek’s bipolar disorder, if not accommodated, can interfere
with every aspect of her performance.
(Pl.’s Reas. Acc. Req. at 4–5.) Dr. Coca’s letter also recommended three specific
accommodations: (1) written instructions for assignments; (2) additional time to
complete tasks; and (3) reassignment to a different position. (Id. at 5; see also Compl.
¶ 30.) A few days after she submitted Dr. Coca’s letter, Von Drasek provided the FDA
with a signed medical release allowing agency representatives to speak with Dr. Coca
and to obtain copies of Von Drasek’s medical records. (Compl. ¶ 31; see also Def.’s
Ex. 5, ECF No. 7-1, at 32.)
The following month, on December 23, 2010, Von Drasek submitted a formal
written response to her proposed removal. (Compl. ¶ 35; see also Pl.’s Ex. 2, Pl.’s
Written Reply to Proposal to Remove (“Pl.’s Reply to Prop. to Remove”), ECF No. 10-
4.) In the response, Von Drasek reiterated that she has a disability and had requested
accommodations, and she explained the requirements of the Rehabilitation Act, as she
understood them. (See Compl. ¶ 35; Pl.’s Reply to Prop. to Remove at 2–5.) Von
7
Drasek’s response also sought to explain why her current work environment was
causing her anxiety, thereby exacerbating her symptoms. (Pl.’s Reply to Prop. to
Remove at 2.) According to Von Drasek, another chemist in her workgroup, Susan
Nichols, had created an “intimidating and dismaying” environment, particularly when
Nichols “yell[ed] and curse[d]” at Von Drasek, “respond[ed] in a very sarcastic
fashion” to Von Drasek’s questions, and provided “unwarranted criticism” of Von
Drasek’s work. (Id.) Von Drasek stated that both she and others had complained about
Nichols’ behavior to agency officials, but that no one at the FDA ever took action. (Id.)
The written response also maintained that Von Drasek’s treating physician had
concluded that Nichols’s “destructive behavior” had “exacerbated” Von Drasek’s
disability to such an extent that accommodations were required. (Id.)
3. The FDA’s Treatment Of Von Drasek’s Request For
Accommodation
After Von Drasek submitted her request for accommodation, there was a great
deal of back-and-forth among agency employees about the issue. Saundra Anderson—
the FDA’s reasonable accommodations specialist—informed Dietzel that, as the
decision maker on Von Drasek’s accommodation request, Dietzel had an obligation to
notify Von Drasek of the agency’s eventual decision and a duty to engage in an
interactive dialogue with Von Drasek regarding the requested accommodations.
(Compl. ¶ 32; see also Pl.’s Ex. 16, FDA Employee Emails, ECF No. 10-18, at 1–2.) In
response, Dietzel expressed hesitation, suggesting that the FDA need not accommodate
Von Drasek because Dietzel had proposed her removal before the agency was even
aware of her disability and before the accommodation request was made. (See Pl.’s Ex.
11, ECF No. 10-13, at 1 (statement by Dietzel in an email to Anderson that “[t]he
8
employee cannot raise a medical condition after management has proposed the
employee’s removal”).) Anderson responded to Dietzel by explaining that an employee
can request accommodations at any time, and that the agency must respond. (See id.;
see also Compl. ¶ 32.)
The FDA also assigned an agency physician, Dr. Lawrence P. Saladino, to Von
Drasek’s case. Dr. Saladino reviewed Von Drasek’s medical documentation, and at one
point, even requested that Dr. Coca complete a supplemental form regarding Von
Drasek’s medical condition. (Compl. ¶ 33.) Dr. Saladino provided Anderson with his
final assessment of Von Drasek’s circumstances on December 27, 2010. (Def.’s Ex. 6,
ECF No. 7-1, at 34–36.) Dr. Saladino agreed that written instructions and extra time
were appropriate accommodations given Von Drasek’s difficulty thinking,
concentrating, interacting with others, working, and sleeping. (Id. at 35.) However, Dr.
Saladino did not recommend reassignment to a different position within the agency,
stating that he found Dr. Coca’s information to be “vague and nonspecific, and does not
clearly explain the medical benefit to be obtained from this request; therefore, it is not
possible to recommend granting such a request at this time.” (Id.) Neither Dr. Saladino
nor Dietzel reached out to Von Drasek or Dr. Coca to seek additional information about
the reassignment request. (Compl. ¶ 36; see also Pl.’s Mot. at 7-8; Pl.’s Ex. 12,
Agency’s Reply to Appellant’s First Set of Discovery Requests, ECF No. 10-14, at 4–
6.)
According to the complaint, Dr. Saladino’s report was forwarded to Dietzel on
January 14, 2011, along with a statement from Anderson reiterating that the agency was
required to provide Von Drasek with a response to her accommodation request, and
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noting that the agency had 15 days to do so. (Compl. ¶ 37.) However, Dietzel failed to
meet that deadline. (Id.) Instead, some 75 days later, Dietzel informed Anderson that
she could not accommodate Von Drasek in her office (id. ¶ 38), and when Anderson
suggested that reassignment should be offered to Von Drasek, Dietzel allegedly made a
disparaging remark to two other FDA employees about how Anderson didn’t “get it[.]”
(Id. ¶ 39.) In addition, when Anderson and others in the FDA’s human resources
department told Dietzel that reassignment paperwork for Von Drasek was being
processed, Dietzel wrote emails to other FDA employees making such comments as,
“‘[w]hat I am hearing is that I need to go full steam ahead and get the [removal]
decision issued before [Anderson] does too much more work’” and “‘I guess I can’t
prevent [Anderson] from reassigning [Von Drasek], unless I of course remove her first.
But do I HAVE to allow [] the EEO to attempt to reassign her?’” (Id. ¶ 42.) In another
email correspondence regarding Dietzel’s plan to terminate Von Drasek, an employee
expressed his belief that the FDA would not be able to accommodate Van Drasek
because, “[e]ven if given more time to complete assignments, she still needs to be able
to think,” to which Dietzel responded, “‘Amen! That is what I have been trying to
convey; the area in which I think she is truly lacking, at least as it pertains to her
current position.’” (Id. ¶ 43.)
On April 18, 2011, Dietzel formally denied Von Drasek’s request for
accommodation. (Pl.’s Ex. 10, Reasonable Accommodation Request Denial (“Reas.
Acc. Req. Denial”), ECF No. 10-12, at 2.) Dietzel noted that the agency had already
provided Von Drasek with written instructions and extra time to complete assignments
during the PIP period, and that Von Drasek’s performance still did not improve. (See
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id. (“Despite these accommodations, you were unable to perform the essential functions
of your job at an acceptable level.”).) Dietzel also stated that “there [was] no position
in the office/Division to which [Von Drasek could] be reassigned[.]” (Id.) 4 Thus, on
April 20, 2011, Von Drasek was discharged from federal service, effective April 22,
2011. (Def.’s Ex. 8, Removal Decision, ECF No. 7-1, at 40.)
B. Procedural History
According to the complaint, on April 26, 2011, four days after the termination
became effective, Von Drasek appealed her removal to the U.S. Merit Systems
Protection Board (“MSPB”), alleging that her removal violated the Rehabilitation Act.
(Compl. ¶ 8.) The MSPB affirmed the removal on December 6, 2011. (Id. ¶ 10.) Von
Drasek appealed the MSPB’s decision to the U.S. Equal Employment Opportunity
Commission (“EEOC”) on February 9, 2012 (id. ¶ 11), and on May 9, 2013, Von Drasek
received the EEOC’s Denial of Consideration of her petition. (Id. ¶ 12).
Von Drasek filed the complaint in the instant case on June 6, 2013. The three-
count complaint alleges that the FDA failed to provide reasonable accommodations for
Von Drasek’s disability (Count I) (Compl. ¶¶ 53–57); that the agency intentionally
discriminated against her on account of her disability (Count II) (id. ¶¶ 58–60); and that
she was removed from her position in retaliation for exercising her rights under the
Rehabilitation Act (Count III) (id. ¶¶ 61–63). The FDA filed a motion to dismiss, or in
the alternative, motion for summary judgment, on August 9, 2013. Von Drasek filed a
4
According to the complaint, at the time that Dietzel made this statement, “[t]he FDA was advertising
‘many vacancies’ for a GS-1320-7/9/11 chemist in Bothell, WA and seven vacancies for a GS-1320-
9/11/12 chemist in Jefferson, Arkansas.” (Compl. ¶ 45.)
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cross-motion on September 23, 2013. This Court held a hearing on both motions on
February 20, 2014.
II. LEGAL FRAMEWORK
A threshold issue in this case is which rule of procedure—Federal Rule of Civil
Procedure 12(b)(6) or 56—applies to the instant motions. The FDA has titled its filing
a “motion to dismiss, or in the alternative, motion for summary judgment[,]” and the
agency cites to Rule 12(b)(6), suggesting that the “failure to state a claim” standard is
the basis for the motion. (See Def.’s Mot. at 1; Def.’s Mem. at 8 (explaining the
standard on Rule 12(b)(6) motions).) However, as Von Drasek points out, “nowhere in
the body of its brief [does the FDA] argue that the Complaint failed to state a claim for
relief.” (Pl.’s Mem. at 2 (emphasis supplied).) Furthermore, in opposing the FDA’s
motion, Von Drasek relies on materials that are not referenced in her complaint. (See,
e.g., Pl.’s Mem. at 16-17 (citing Von Drasek Aff.; Pl.’s Ex. 15, FDA Reasonable
Accommodation Policy, ECF No. 10-17).) Accordingly, the Court will grant the FDA’s
“alternative” request that its motion be treated as one for summary judgment under Rule
56. See Cox v. Graphic Commc’ns Conference of Int’l Bhd. of Teamsters, 603 F. Supp.
2d 23, 24 (D.D.C. 2009) (construing a motion to dismiss, or in the alternative, for
summary judgment as a motion for summary judgment where “[b]oth parties have
attached to their filings various declarations and exhibits outside the scope of the
Complaint and have submitted statements of material fact pursuant to Local Civil Rule
7(h)(1)”).
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A. Summary Judgment Standard Under Rule 56
Federal Rule of Civil Procedure 56 makes clear that summary judgment is
appropriate only if there is “no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court’s role in
deciding a summary judgment motion is not to “determine the truth of the matter, but
instead [to] decide only whether there is a genuine issue [of material fact] for trial.”
Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (citation
omitted). “A fact is material if it ‘might affect the outcome of the suit under the
governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the non-moving party.” Steele v.
Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
In determining whether or not there is a genuine dispute about material facts, the
court must view the evidence in the light most favorable to the non-moving party and
must draw all reasonable inferences in that party’s favor. See, e.g., Grosdidier v.
Broad. Bd. Of Governors, Chairman, 709 F.3d 19, 23 (D.C. Cir. 2013) (quotation marks
and citation omitted). The moving party may successfully support its motion by
identifying those portions of the record that it believes demonstrate the absence of a
genuine dispute of material fact. Fed. R. Civ. P. 56(c)(1)(A). And in opposition, the
non-moving party must show that there is a genuine dispute of fact based on more than
“[t]he mere existence of a scintilla of evidence”; indeed, the evidence must be such that
“the jury could reasonably find for” the non-moving party. Anderson, 477 U.S. at 252.
Moreover, the non-moving party “may not rest upon [the] mere allegations or denials of
13
his pleading but must present affirmative evidence showing a genuine issue for trial.”
Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (internal quotation
marks and citation omitted).
Importantly, in determining whether there are genuine issues of material fact for
trial in a case that involves allegations of employment discrimination, the Court must
proceed with caution, and must apply a slightly “heightened standard” that reflects this
hesitation. See Walker v. England, 590 F. Supp. 2d 113, 132–33 (D.D.C. 2008)
(explaining that the prospect of granting summary judgment “must be approached with
specific caution in discrimination cases”); see also McCoy v. WGN Cont’l Broad. Co.,
957 F.2d 368, 370–71 (7th Cir. 1992) (noting that the “general standard [for summary
judgment] is applied with added rigor in employment discrimination cases”). But the
plaintiff in such cases “is not [thereby] relieved of his obligation to support his
allegations by . . . competent evidence showing that there is a genuine issue for trial.”
Walker, 590 F. Supp. 2d at 132 (internal quotation marks and citation omitted); see also
Marshall v. James, 276 F. Supp. 2d 41, 47 (D.D.C. 2003) (noting that summary
judgment is still granted in discrimination cases, despite the courts’ cautious approach
(abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
114 (2002)).
Finally, it is important to note “[t]he rule governing cross-motions for summary
judgment[,]” which is that “neither party waives the right to a full trial on the merits by
filing its own motion; each side concedes that no material facts are at issue only for the
purposes of its own motion.” Sherwood v. Wash. Post, 871 F.2d 1144, 1147 n.4 (D.C.
Cir. 1989) (internal quotation marks and citation omitted). Furthermore, “[i]n assessing
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each party’s motion, ‘[a]ll underlying facts and inferences are analyzed in the light
most favorable to the non-moving party.’” Vaughan v. Amtrak, 892 F. Supp. 2d 84, 91–
92 (D.D.C. 2012) (alteration in original) (quoting N.S. ex rel. Stein v. District of
Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010)).
B. The Rehabilitation Act
The Rehabilitation Act of 1973 provides in relevant part that “[n]o otherwise
qualified individual with a disability” may “be subjected to discrimination” by any
federal agency “solely by reason of her or his disability[.]” 29 U.S.C. § 794(a). The
Rehabilitation Act applies to federal executive agencies, and to any other program that
receives federal funding—by contrast, state and local government programs, including
those that do not receive federal funding, are governed by the Americans with
Disabilities Act (“ADA”). Compare 29 U.S.C. § 794(a), with 42 U.S.C. § 12112.
Consequently, because Von Drasek is challenging the actions of the FDA—a federal
agency in the Executive Branch—she has filed this action under the Rehabilitation Act
and not the ADA. Notably, however, the Rehabilitation Act and the ADA are similar in
nature and share a common purpose: “to prevent old-fashioned and unfounded
prejudices against disabled persons from interfering with those individuals’ rights to
enjoy the same privileges and duties afforded to all United States citizens.” Galloway
v. Super. Ct. of D.C., 816 F. Supp. 12, 20 (D.D.C. 1993).
Although the Rehabilitation Act does not specifically delineate the particular
types of discrimination that the statute prohibits, it does state that where, as here, an
employment discrimination lawsuit is filed under Section 794 of the Rehabilitation Act,
the applicable legal standards “shall be the standards applied under” the analogous
15
discrimination provisions of the ADA. See 29 U.S.C. § 794(d); see also Schmidt v.
Solis, 891 F. Supp. 2d 72, 86–87 (D.D.C. 2012) (noting that, under the Rehabilitation
Act, “substantive rights are defined by reference to the ADA, as well as the [EEOC’s]
regulations and enforcement guidance that implement the ADA”). Accordingly, in
order to claim protection under the Rehabilitation Act (or the ADA), a plaintiff must be
a “qualified individual with a disability[.]” 29 U.S.C. § 794(a); see also 42 U.S.C.
§ 12112(a). This means that the person must have a “disability”—i.e., “a physical or
mental impairment that substantially limits one or more major life activities of such
individual” 42 U.S.C. § 12102(1)(A)—and must also be a person “who, with or without
reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.” Id. § 12111(8). Furthermore, the
Rehabilitation Act (like the ADA) bars several different types of discrimination: failure
to accommodate, see, e.g., Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir.
1998) (en banc); intentional discrimination, also known as “disparate treatment”
discrimination, see, e.g., Doak v. Johnson, 19 F. Supp. 3d 259, 271 (D.D.C. 2014);
retaliation, see, e.g., Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005);
disparate impact discrimination, see, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 53
(2003); and the creation of a hostile work environment, see, e.g., Floyd v. Lee, 968 F.
Supp. 2d 308, 328–29 (D.D.C. 2013).
Significantly for present purposes, despite the similarities between the
Rehabilitation Act and the ADA, there is an established exception to the application of
the ADA’s legal standards to a claim brought under the Rehabilitation Act: the plain
language of the Rehabilitation Act imposes a stricter causation standard than the ADA.
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See Alston v. District of Columbia, 770 F. Supp. 2d 289, 298 (D.D.C. 2011). That is,
while the ADA prohibits discrimination against an employee “on the basis of
disability[,]” 42 U.S.C.A. § 12112, the Rehabilitation Act prohibits discrimination
against an employee “solely by reason of her or his disability[.]” 29 U.S.C. § 794(a)
(emphasis added). Thus, a discrimination or retaliation claim brought under the ADA
can rest on a “motivating factor” causation analysis—meaning that the claim can be
sustained if discriminatory animus is merely one of several factors that precipitated the
adverse employment action, see Alston, 770 F. Supp. 2d at 297; see also Pinkerton v.
Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (“The proper causation standard under the
ADA is a ‘motivating factor’ test.”); Head v. Glacier N.W. Inc., 413 F.3d 1053, 1065
(9th Cir. 2005) (“[T]he ADA plaintiff need not show more than that impermissible
motives were a ‘motivating factor’ in any adverse action.”)—but courts have come to a
different conclusion with respect to the Rehabilitation Act. For Rehabilitation Act
claims, courts have found that the presence of the word “solely” means that the
causation element of intentional discrimination and retaliation claims brought under
that Act cannot be satisfied by a motivating factor test; rather, the applicable analysis is
the traditional “but-for” causation standard. See Gard v. U.S. Dep’t of Educ., 752 F.
Supp. 2d 30, 35–36 (D.D.C. 2010) (applying but-for causation to a Rehabilitation Act
retaliation claim), aff’d, No. 11-5020, 2011 WL 2148585 (D.C. Cir. May 25, 2011); see
also McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1073–74 (11th Cir. 1996)
(rejecting but-for causation under ADA because, unlike the Rehabilitation Act, it lacked
the word “solely”).
17
Notably, under the “but-for” causation standard, a claim cannot succeed unless
the protected trait—here, disability—“was the ‘reason’ that the employer decided to
act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (explaining but-for
causation in the context of the Age Discrimination in Employment Act of 1967 (citing
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)); see also Palmquist v. Shinseki,
689 F.3d 66, 72 (1st Cir. 2012) (holding that but-for causation prevents a Rehabilitation
Act claim where an employer “prove[s] that it would have made the same employment
decision in the absence of the forbidden factor”); Gard, 752 F. Supp. 2d at 36 (noting
that, to survive motion for summary judgment on Rehabilitation Act retaliation claim,
plaintiff “must present facts from which a reasonable jury could conclude that ‘but for’
his [prior protected activity], Defendants would not have made it more difficult to
obtain a reasonable accommodation”).
III. ANALYSIS
As explained, Von Drasek makes three claims in this action: first, that the FDA
is liable for failing to accommodate her disability (see Compl. ¶¶ 53–57); second, that
the FDA intentionally discriminated against her because of her disability when it
terminated her employment (id. ¶¶ 58–60); and third, that the FDA terminated her
employment in retaliation for her request for a reasonable accommodation (id. ¶¶ 61–
63). In response to the failure-to-accommodate claim, the FDA argues both that Von
Drasek’s request for a reasonable accommodation was untimely and that, regardless, she
has not established a prima facie case for the agency’s unlawful failure to accommodate
her. (Def.’s Mem. at 14-17.) With respect the intentional discrimination and retaliation
claims, the FDA argues that the agency has unrefuted, legitimate, non-discriminatory,
18
and non-retaliatory reasons for Von Drasek’s termination. (Id. at 17-18.) Moreover,
both parties are adamant that they are entitled to judgment as a matter of law on the
facts presented; consequently, cross-motions for summary judgment are pending with
respect to each of Von Drasek’s claims.
For the reasons explained below, this Court concludes that, although Von
Drasek’s request for accommodations was timely, neither party is entitled to summary
judgment on her failure-to-accommodate claim because a genuine dispute of fact exists
regarding the material issue of whether Von Drasek could have performed adequately if
she had been reassigned to a chemist position in a different working group, as she
requested. This Court further concludes that the Defendant is entitled to summary
judgment on Von Drasek’s intentional discrimination and retaliation claims because, on
the record presented here, no reasonable jury could find that Von Drasek’s termination
was solely due to animus toward Von Drasek’s disability, or solely in retaliation for her
request for accommodations, as the Rehabilitation Act requires.
A. There Are Genuine Issues Of Material Fact With Respect To Von
Drasek’s Failure-to-Accommodate Claim
To recap what was explained above, the Rehabilitation Act protects disabled
employees who can perform the essential functions of their jobs with “reasonable
accommodation.” 42 U.S.C. § 12112(a)-(b). The failure of an employer to provide a
reasonable accommodation for an employee’s disability is, essentially, a strict liability
violation, because refusal to provide a reasonable accommodation when one is
requested violates the Rehabilitation Act regardless of whether the employer harbors
animus or otherwise intends to discriminate against the employee. See Schmidt, 891 F.
Supp. 2d at 87 (“[I]t is not appropriate to require proof of intent when the claim is that
19
the employer failed to provide a reasonable accommodation.” (emphasis added)
(internal quotation marks and citation omitted)). Thus, to establish a failure-to-
accommodate disability discrimination claim, a plaintiff must show only:
(1) that [s]he was an individual with a disability within the
meaning of the statute; (2) that the employer had notice of
[her] disability; (3) that with reasonable accommodation [s]he
could perform the essential functions of the position; and (4)
that the employer refused to make such accommodations.
Pantazes v. Jackson, 366 F. Supp. 2d 57, 66 (D.D.C. 2005) (internal quotation marks
citation omitted). The plaintiff bears the burden of proving each element by a
preponderance of the evidence, see Flemmings v. Howard Univ., 198 F.3d 857, 861
(D.C. Cir. 1999); however, if the employer invokes the affirmative defense of undue
hardship, the burden shifts to the employer to prove that the affirmative defense applies.
Id.; see also Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993).
In the instant case, Von Drasek requested accommodations on October 5, 2010—
literally on the eve of her proposed dismissal—and the FDA’s first line of attack is that
Von Drasek’s request was untimely, which, in the FDA’s view, means that the agency
had no obligation to accommodate her. (See Def.’s Mem. at 14.) This line of argument
requires this Court to consider whether Von Drasek’s request for accommodations was
properly made as a threshold issue, prior to the Court’s analysis of the merits of the
parties’ contention that there is no genuine issue of material fact with respect to the
failure-to-accommodate claim. (Def.’s Mem. at 14-16.) As explained below, this Court
disagrees with the FDA’s timeliness argument.
20
1. Albeit Late In Coming, Von Drasek’s Accommodation
Request Was Timely And The FDA Had A Duty To Consider
It
It is the law of this circuit that a request for accommodation of a disability is
timely if the institution is “in a position to respond” to the request. Singh v. George
Wash. Univ. Sch. of Med. & Health Scis., 508 F.3d 1097, 1105 (D.C. Cir. 2007); see
also Steere v. George Wash. Univ., 368 F. Supp. 2d 52, 56 (D.D.C. 2005). The D.C.
Circuit directly held as much in Singh, a case that involved a plaintiff medical student
who had received failing or unsatisfactory grades in several classes. See 508 F.3d at
1099. As a result of the student’s poor academic performance, a committee of faculty
members recommended that the student be dismissed from the program, and shortly
thereafter, an independent psychologist diagnosed the plaintiff with learning disabilities
and recommended several accommodations. Id. The plaintiff promptly disclosed the
diagnosis to the faculty and sought accommodations for it, but instead of commencing
the accommodation process, the university dismissed the plaintiff from the program,
arguing the request was untimely because it came after the student had already been
tapped for removal. Id. at 1105. The D.C. Circuit rejected the university’s argument,
explaining that the accommodation request was not too late because it had been made
before the plaintiff was actually expelled, and the plaintiff’s lawsuit sought only to
challenge the university’s “actions after she informed [it] of her diagnosis and
requested modifications, when the [university] was in a position to respond.” Id. at
1105; see also Steere, 368 F. Supp. 2d at 56 (rejecting the defendant’s timeliness
argument because the final dismissal decision took place after the decision-maker had
been informed about the plaintiff’s condition and accommodation request).
21
So it is here. 5 Von Drasek did not disclose her disability or request
accommodations for it until months after Dietzel had warned her about her poor job
performance and the consequences of a failure to improve, and indeed, Von Drasek
even waited until she had been specifically informed that she had not improved and that
removal was being proposed. Nevertheless, it is undisputed that Von Drasek revealed
the bipolar diagnosis and sought various work-related accommodations before she was
removed from her position. And that circumstance puts her in precisely the same
position temporally as the plaintiff in Singh, whose request was found to be timely even
though it was made after a proposed removal. See Singh, 508 F.3d at 1105 (finding
timely an accommodation request made after the faculty committee had recommended
dismissal, but prior to plaintiff’s dismissal, “when the University was still in apposition
to respond[,]” and declining to “address the case of the plaintiff who, once ousted on
terms applicable to a non-disabled person, knocks on the door anew to seek
reinstatement under the ADA”).
None of the sources that the FDA cites to support its contrary argument
establishes otherwise. For starters, the only federal case that the FDA cites for this
proposition is inapposite because the plaintiff employee never properly requested
accommodation, either before or after her termination. (See Def.’s Opp’n to Pl.’s Cross
5
It is of no moment that Singh and its progeny involve a different provision of the ADA (and thus the
Rehabilitation Act) than is at issue with respect to Von Drasek’s failure-to-accommodate claim. The
plaintiff in Singh was a student whose claim arose under Title III of the ADA, which applies to places
of public accommodation. See 42 U.S.C. § 12182(a). By contrast, the instant case involves a claim
under the Rehabilitation Act that incorporates standards found in Title II of the ADA, see 29 U.S.C.
§ 794(d), which applies to employers, 42 U.S.C. § 12112(a). Nevertheless, neither Title II nor Title III
of the ADA contains any unique timing requirements that would serve to distinguish these statutory
sections, and the trend among the circuits is to “read . . . equivalent requirement[s]” into these different
provisions. Singh, 508 F.3d at 1106 (citing Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir.
2006) & Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154-55 (1st Cir. 1998)).
22
Mot. and Reply in Supp. of Def.’s Mot. (“Def.’s Opp’n”) at 5 (relying on Hill v. Kansas
City Area Transportation Authority, 181 F.3d 891 (8th Cir. 1999), for the proposition
that “the employer has no duty to accommodate” if the “employer has already initiated
[removal] action based on poor performance[,]” when the Eighth Circuit ultimately held
that “Hill did not request a disability accommodation, she asked for a second chance to
better control her treatable medical condition. . . . [which] is not a cause of action under
the ADA” (Hill, 181 F.3d at 895)); see also Singh, 508 F.3d at 1105 (distinguishing Hill
on the basis that plaintiff there “had failed to request any real accommodation”). Nor
do the administrative guidance documents or decisions that the FDA points to help to
advance its timeliness argument. To be sure, EEOC guidance explains that reasonable
accommodation is “prospective,” so employers are “not required to excuse past
misconduct even if it is the result of the individual’s disability.” EEOC, Enforcement
Guidance: Reasonable Accommodation & Undue Hardship Under the ADA (“EEOC
Accommodation Guidance”), Question 36 (Oct. 17, 2012). 6 But the guidance also notes
that the employer “must make reasonable accommodation” to enable the employee to
succeed going forward, id., and on the specific issue of timeliness, the guidance
emphasizes that there is no deadline by which an employee must request an
accommodation, id. at Question 4.
Moreover, under regulations promulgated by the Office of Personnel
Management, 5 C.F.R. § 432.101 et seq. (2014), an employee for whom removal has
been proposed has the right to provide a written response, and as part of this response,
the employee may provide medical records, which the employer must consider before
6
Available at http://www.eeoc.gov/policy/docs/accommodation.html (last visited Aug. 14, 2015).
23
issuing a final decision on the proposed employment action, see 5 C.F.R.
§ 432.105(a)(4)(iv). Indeed, an OPM regulation specifically instructs that “[t]he agency
shall allow an employee who wishes to raise a medical condition which may have
contributed to his or her unacceptable performance to furnish medical
documentation[,]” id. (emphasis added), and although the regulation expresses a
preference that employees submit such medical documentation before a proposed
removal, OPM makes clear that the agency must still consider the documentation if it is
not submitted until afterwards, and it also stresses that the agency “shall be aware” of
the reasonable accommodation duty if “the employee offers [medical] documentation
after the agency has proposed a reduction in grade or removal[.]” Id.; see also
Reduction in Grade & Removal Based on Unacceptable Performance, 54 Fed. Reg.
26,172, 26,178 (June 21, 1989) (same).
It is also clear that the EEOC administrative decisions that the FDA cites are
distinguishable from the instant case on their facts. Generally speaking, these opinions
involve probationary employees,not permanent employees like Von Drasek 7; or
employees who had already received a final notice of removal 8; or employees who are
unable to demonstrate that the disability was actually the cause of the poor
performance. 9 Thus, these decisions simply do not stand for the proposition that a
7
See, e.g., Diaz v. Shinseki, EEOC Appeal No. 0120093341, 2011 WL 2956836, at *3 (July 14, 2011);
Ruiz v. Archivist of the U.S. Nat’l Archives & Record Admin., EEOC Appeal No. 01A55070, 2006 WL
266491, at *1 (Jan. 24, 2006); Hernandez v. Dep’t of the Navy, EEOC Appeal No. 01A41079, 2004 WL
764343, at *1 (Mar. 30, 2004).
8
See, e.g., Hailey v. Donahoe, EEOC Appeal No. 0120110260, 2011 WL 2956814, at *2 (July 12,
2011); Bell, v. Dep’t of Homeland Sec., No. 0120071655, 2009 EL 1586276, at *2 (May 28, 2009);
Smith v. Dep’t of Labor, EEOC Appeal No. 01A50480, 2006 WL 615735, at *5 (Feb. 28, 2006).
9
See, e.g., Traylor v. Horinko, EEOC Appeal No. 01A14117, 2003 WL 22763229, at *6-7 (Nov. 6,
2003).
24
request for accommodations made by a permanent employee before a final notice of
removal has issued is untimely.
In sum, the relevant administrative guidance is in harmony with the D.C.
Circuit’s mandate that, if an employer is still in a position to respond to a request for
accommodations (because the requester is still employed) such request is timely and the
employer must consider it. See Singh, 508 F.3d at 1099. Here, Von Drasek requested
accommodations prior to being removed, and as it turned out, the FDA’s human
resources specialist also specifically noted that the agency did, in fact, have a duty to
attempt to honor this tardy request. (Pl.’s Ex. 11, ECF No. 10-13, at 1.) This Court
finds that the specialist was right: Von Drasek’s request was timely, and thus, the
FDA’s contention that it had no obligation to consider Von Drasek’s request for
accommodations under the circumstances presented here is unavailing.
2. Neither Party Is Entitled To Summary Judgment On The
Failure-to-Accommodate Claim
The parties’ cross motions assert that there is no genuine issue of material fact
regarding whether or not Von Drasek is entitled to relief on her failure-to-accommodate
claims. The FDA maintains that the uncontroverted facts fail to establish all of the
elements of a prima facie case, and thus Defendants are entitled to judgment as a matter
of law (Def.’s Mem. at 16-17), while Von Drasek asserts Defendant’s improper refusal
to accommodate her is equally plain on the record facts, and thus summary judgment
should be awarded to Plaintiff (Pl.’s Mem. at 10–21). Notably, three of the four
elements of a failure-to-accommodate claim are indisputably established here: Von
Drasek is an individual with a disability within the meaning of the ADA, given her
bipolar diagnosis (see Def.’s Mem. at 6 n.1; Pl.’s Mem. at 2); the FDA was aware of
25
Von Drasek’s disability prior to its decision to terminate her employment (see Removal
Decision at 43); and the FDA denied Von Drasek’s requested accommodations (at least
with respect to her request for reassignment to a different position) (Reas. Acc. Req.
Denial at 2).
Consequently, whether or not summary judgment is appropriate—and for
whom—turns on whether there us any genuine dispute regarding Von Drasek’s ability
to perform the essential functions of the position with the requested accommodations.
(See, e.g., Def.’s Opp’n at 1–2 (“Plaintiff does not state a prima facie case of disability
discrimination because her requested accommodation would not have helped her
perform the essential functions of her job as a chemist.”); Pl.’s Reply to Def.’s Opp’n to
Pl.’s Cross-Mot. for Summ. J. at 5 (“Defendant denied Plaintiff’s request for reasonable
accommodation because Plaintiff was not qualified to perform her job[; n]o
determination was made regarding Plaintiff’s ability to perform any other chemist
position.” (internal citations omitted)).) This Court concludes, for the following
reasons, that whether or not Von Drasek could have performed adequately if she had
been accommodated as requested presents a genuine disputed issue of fact that is
material to Von Drasek’s failure-to-accommodate claim, and as a result, summary
judgment for either party is precluded.
As explained previously, “[t]o prevail on a claim of disability discrimination
under the Rehabilitation Act, plaintiffs must show that they could perform the essential
functions of their jobs either with or without reasonable accommodation.” Solomon v.
Vilsack, 628 F.3d 555, 557 (D.C. Cir. 2010) (internal quotation marks and citation
26
omitted); see also 42 U.S.C. § 12111(8). 10 There is no question that “reassignment to a
vacant position” can be a reasonable accommodation, 42 U.S.C. § 12111(9), and when
such reassignment is requested, courts have clarified that the focus is not on whether
the employee can perform the essential functions of her current job, but rather whether
the employee “can perform the essential functions of the employment position to which
she seeks reassignment[,]” Aka, 156 F.3d at 1301. Von Drasek requested to be
reassigned to another chemist position within the FDA, after written instructions and
additional time for assignments were insufficient to buoy her sagging performance as an
FDA chemist. (See Defs.’ Mem. at 16-17.) Thus, the FDA contends that Von Drasek’s
inability to perform as a chemist in any division was self-evident. (Id.) But, the record
also shows that Von Drasek had successfully performed the essential functions of an
agency chemist previously, at the USDA, where she had worked for seven years and had
allegedly performed the required analyses in a “fully successful” (and in some cases,
“exceptional”) manner, despite her bipolar disorder diagnosis. (See Pl.’s Reply to Prop.
to Remove at 6, 13.) In addition, according to Von Drasek’s physician, her failure to
perform at the FDA was due in large part to the particular work environment in which
she had been placed—an environment that purportedly was “causing her an
extraordinary amount of anxiety.” (See Def.’s Ex. 4, ECF No. 7-1, at 30; Pl.’s Reply to
Prop. to Remove at 2, 3-4 (insisting that Von Drasek’s poor performance was
attributable to her co-worker’s hostile behavior—i.e., yelling, cursing, sarcasm, and
10
Notably, “[w]hether an individual is ‘qualified’ for a job may at times present a pure question of law
to be resolved by the court, but it may also . . . be a question of fact that must be resolved by a fact-
finder at trial.” Swanks, 179 F.3d at 934.
27
constant criticism—and that she would have performed adequately had she been placed
in a different working group).)
The instant record thus compels the conclusion that a genuine dispute of fact
exists regarding whether Von Drasek’s job performance was irredeemably poor, on the
one hand, or the product of a specific work environment, on the other. And this dispute
is plainly material to the question of whether the requested reassignment would have
been a reasonable accommodation for the purpose of the Rehabilitation Act. Accordingly,
summary judgment for either party on the failure-to-accommodate claim would be
inappropriate, and both parties’ cross-motions for summary judgment must be denied.
See Alston v. Wash. Metro. Transit Auth., 571 F. Supp. 2d 77, 85-86 (D.D.C. 2008)
(denying motion for summary judgment on failure-to-accommodate claim where there
was “a material factual dispute as to whether plaintiff was qualified” for the
reassignment positions she identified); Hines v. Chrysler Corp., 231 F. Supp. 2d 1027,
1052 (D. Colo. 2002) (same); D’Amato v. Long Island R.R. Co., 99cv1797, 2001 WL
563569, at *6 & n.7 (S.D.N.Y. 2001) (same).
B. The FDA Is Entitled To Summary Judgment On Von Drasek’s
Intentional Discrimination and Retaliation Claims
With respect to Von Drasek’s intentional discrimination and retaliation claims,
this Court has no trouble concluding that no genuine dispute of material fact exists
because, on the instant record, no reasonable jury could find that discriminatory animus
against Von Drasek’s disability was the but-for cause of her termination, or that the
FDA terminated her solely because she requested a reasonable accommodation.
Instead, the record evidence clearly establishes that Von Drasek’s supervisor had
formed a deeply-held conviction about Von Drasek’s inability to do her job—and had
28
made plans to terminate her—long before Von Drasek revealed her disability to the
agency or requested accommodations.
1. Discriminatory Animus Based On Disability Was Not The Sole
Reason For Von Drasek’s Termination
The prima facie elements of an intentional discrimination claim brought under
the Rehabilitation Act are: (1) that the employee had a disability within the meaning of
the Act, (2) that the employee was “otherwise qualified” for the position with or
without reasonable accommodation, and (3) that the employee suffered an adverse
employment action solely because of her disability. See Dorchy v. Wash. Metro.
Transit Auth., 45 F. Supp. 2d 5, 10 (D.D.C 1999). When advancing an intentional
discrimination claim, a plaintiff may either present direct evidence of discrimination
based on her disability, or she may provide indirect—or circumstantial—evidence of
discrimination. Pantazes, 366 F. Supp. 2d at 66; see also Trans World Airlines v.
Thurston, 469 U.S. 111, 121 (1985) (explaining that the shifting burdens of production
established in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), were
intended to assist a plaintiff who has only circumstantial evidence of bias).
Von Drasek alleges that her removal from the FDA chemist position constituted
intentional discrimination on the basis of her disability, (see Compl. ¶¶ 58-60), and she
argues that she has direct evidence of intentional discrimination in the form of emails
between various HHS employees (see Pl.’s Mem. at 36-39)—in particular, Von Drasek
points to the exchange between Dietzel and another employee in which the employee
expresses doubt that “the Agency will be able to accommodate” Von Drasek because,
“[e]ven if given more time to complete assignments, [Von Drasek] still needs to be able
to think[,]” and Dietzel responds that thinking is “the area in which [Von Drasek] is
29
truly lacking[.]” (Pl.’s Ex. 19, ECF No. 10-21, at 1 (emphasis added).) As Von Drasek
sees it, whether she has the “ability to think” is inherently tied to her bipolar disorder
and, therefore, this comment pertains to her disability. Cf. Armstrong v. Jackson, 730
F. Supp. 2d 118, 124 (D.D.C. July 17, 2006). This Court disagrees with Von Drasek’s
characterization of this record evidence, and for the reasons explained below, it
concludes that no reasonable jury could find that the quoted remarks constitute direct
evidence of discrimination for the purpose of the causation element of Von Drasek’s
intentional discrimination claim.
“‘Direct evidence of discrimination is evidence that, if believed by the fact
finder, proves the particular fact in question without any need for inference[,]’”
including “‘any statement or written document showing a discriminatory motive on its
face.’” Bowden v. Clough, 658 F. Supp. 2d 61, 87 n.19 (D.D.C. 2009) (quoting
Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006)). The
email statement quoted above is not facially discriminatory—at most, it indicates the
speakers’ personal animosity for Von Drasek in light of her prior poor performance—
and, absent any reference to Von Drasek’s disability or any suggestion that the speakers
were discussing Von Drasek’s capabilities as a disabled person, the statement does not
suffice to demonstrate that Von Drasek was removed from her position “solely by
reason of” her bipolar disorder within the meaning of the Rehabilitation Act. See Rand
v. Geithner, 730 F. Supp. 2d 118, 124 (D.D.C. 2010) (noting that the supervisor’s e-
mail expressing enthusiasm about the plaintiff’s removal at most “shows that [the
supervisor] had a personal dislike for [the plaintiff]; it does not show . . . animus”
(citation omitted)); see also Armstrong, 730 F. Supp. 2d at 124 (noting that negative
30
comments about the plaintiff’s attitude in general were unrelated to her disability and
therefore only reflected dislike rather than discriminatory animus). Statements made in
other emails in which FDA employees discuss Von Drasek’s fate likewise lack the
necessary discriminatory animus. 11
Moreover, although the record clearly establishes that Dietzel personally disliked
Von Drasek and wanted to have her removed, it also confirms that Dietzel had
resolutely set out on the path toward securing Von Drasek’s termination long before
Von Drasek had revealed her disability to the FDA. To recap, Dietzel first put Von
Drasek on notice that her performance was lacking at the time that Dietzel placed Von
Drasek on the PIP in April of 2010—before anyone at the FDA was aware of Von
Drasek’s disability. (Def.’s Ex. 1 at 2.) Six months later, when Von Drasek’s
performance still had not improved, Dietzel gave her an official notice of proposed
removal (again, before Dietzel was even aware that Von Drasek had bipolar disorder).
(Prop. to Remove.) And in the end, the reasons that the FDA ultimately provided for
terminating Von Drasek were exactly the same reasons that the agency gave when it
placed Von Drasek on the PIP and when it issued the notice of proposed removal.
(Compare Removal Decision at 43, with PIP at 2-4, and Prop. to Remove at 8-11.)
11
For example, Ann Adams (Dietzel’s supervisor) wrote to Dietzel that the FDA was “in a catch 22”
because “if we proceed with the removal, [Von Drasek] will take it to MSPB, based on inadequate
training and hostile work environment[,]” but “if we did take her back and assign her to a different
supervisory group, we would once again be putting her on a PIP in the coming years (and then we’ll get
hit with retaliation).” (Pl.’s Ex. 18, ECF No. 10-20, at 1.) When this was brought to her attention, one
human resources officer reminded the decision-makers to consider the possibility of reassignment, and
noted that, if removal was the chosen course, they needed to articulate “job related non-discriminatory
answers . . . that do not appear to be a pretext.” (Id.) These references to “discrimination” and
“pretext” establish only that, at this point in time, the FDA was aware of Von Drasek’s disability, and
that the human resources officer was faithfully performing her duties.
31
Thus, it is indisputable that the agency was already well underway with the
termination process before it was made aware of Von Drasek’s disability, and there is
no direct (or even circumstantial) evidence that but for discriminatory animus Von
Drasek would not have been removed. Therefore, in this Court’s view, no reasonable
jury could find for the Plaintiff on the claim of intentional disability discrimination in
violation of the Rehabilitation Act.
2. There Is No Evidence That Von Drasek Was Removed Solely In
Retaliation For Her Accommodation Request
The Court reaches the same conclusion with respect to Von Drasek’s retaliation
claim. (See Compl. ¶¶ 61–63 (alleging that the FDA fired her in retaliation for her
request for reasonable accommodation).) To establish a prima facie case of retaliation,
a plaintiff must show: “(1) that [s]he engaged in protected activity; (2) that [s]he was
subjected to adverse action by [her] employer; and (3) that there was a causal link
between the adverse action and the protected activity.” Alexander v. Tomlinson, 507 F.
Supp. 2d 2, 17 (D.D.C. 2007) (citing Smith, 430 F.3d at 455). Retaliation claims
brought under the Rehabilitation Act are subject to the same standards as Rehabilitation
Act discrimination claims—i.e., to prove the “causal connection” in a retaliation case
brought under the Rehabilitation Act the plaintiff must show “that the adverse action
would not have occurred but for the protected activity.” Marshall, 634 F. Supp. 2d at
73.
Here, in response to Von Drasek’s contention that she was terminated in
retaliation for seeking a reasonable accommodation, the FDA reiterates that Von Drasek
was removed because she was unable to perform the essential duties of her job, even
with extra time and written instructions. And given the undisputed facts regarding the
32
circumstances leading up to Von Drasek’s removal, it is clear that there is no evidence
that Von Drasek was terminated because she requested an accommodation, rather than
as a result of her past job performance and the FDA’s belief that she would not be able
to satisfy the job requirements in the future. See, e.g., Lamberson v. Pennsylvania, 561
F. App’x 201, 207 (3d Cir. 2014) (affirming grant of summary judgment to defendants
on a nurse’s Rehabilitation Act claim arising from suspension of her nursing license
where the allegedly discriminatory policy “was not a ‘but for’ factor in the decision to
suspend [plaintiff’s] license or why it was not reinstated”); Gard, 752 F. Supp. 2d at 39
(granting defense motion for summary judgment where plaintiff “offer[ed] no specific
facts to support his burden of persuasion that his engagement in protected activity was
the ‘but-for’ reason that Defendants refused an official accommodation”). Put another
way, even if the FDA was wrong about Von Drasek’s capabilities, there is no dispute
that it was planning to terminate Von Drasek (and, in fact, her supervisor had already
initiated the removal process) before Von Drasek revealed her disability or requested
accommodations. Consequently, this Court concludes that no reasonable jury could
find the necessary causal link between Von Drasek’s request for accommodation and
the adverse employment action at issue here.
IV. CONCLUSION
Von Drasek certainly waited until the very last moment to reveal her disability
and request accommodations, but her request was timely insofar as she had not yet been
removed when the request was made, and thus, the FDA had a duty to consider it. Be
that as it may, whether or not Von Drasek could perform the essential functions of the
chemist position with the requested accommodations is a genuine issue of fact that is
material to Von Drasek’s failure-to-accommodate claim and thus prevents entry of
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summary judgment for either party on that claim. But, the Court will enter summary
judgment in the FDA’s favor on Von Drasek’s intentional discrimination and retaliation
claims, because the record evidence fails to satisfy the Rehabilitation Act’s stringent
but-for causation requirement.
Accordingly, it is hereby ORDERED that Defendant’s [7] Motion for Summary
Judgment is GRANTED IN PART and DENIED IN PART, and Plaintiff’s [10] Cross-
Motion for Summary Judgment is DENIED.
DATE: August 17, 2015 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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