Doak v. Napolitano , 19 F. Supp. 3d 259 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDNA DOAK, :
:
Plaintiff, : Civil Action No.: 12-1177 (RC)
:
v. : Re Document No.: 14
:
JEH JOHNSON, 1 :
Secretary, United States :
Department of Homeland Security :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Edna Doak brings this employment discrimination action against Jeh Johnson, the
Secretary of Homeland Security (“Department”), in his official capacity. Ms. Doak alleges that
her employer, the United States Coast Guard (“USCG”), 2 discriminated against her, and
retaliated against her on the basis of her disabilities in violation of section 501 of the
Rehabilitation Act of 1973, codified at 29 U.S.C. § 791, et seq. The Department moved to
dismiss for failure to exhaust certain claims and also moved for summary judgment on all claims.
For the reasons that follow, the Court will grant the Department’s motion on both grounds.
1
The plaintiff originally brought suit against Janet Napolitano, the Secretary of
Homeland Security, at the time she filed her complaint on July 18, 2012. Pursuant to Fed. R.
Civ. P. 25(d), Jeh Johnson is automatically substituted as the defendant, as he succeeded her in
office on December 23, 2013.
2
The United States Coast Guard is a component of the United States Department of
Homeland Security. See Def.’s Mot. Summ. J. 1, ECF No. 14. See also
http://www.uscg.mil/top/about/ (last accessed January 7, 2014).
II. FACTUAL BACKGROUND
Edna Doak was employed as a Program Analyst for the United States Coast Guard from
November 2007 through August 2009, and as a Management Program Analyst from August
2009 through October 2010. Compl. ¶¶ 5‒6, ECF No. 1. Her day-to-day responsibilities were to
support the Surface Program, which included “[w]atching the budget, preparing obligation plans,
working with the program manager, doing procurement requests,” and “[m]eeting with the
program manager and the support team” to plan for the building of boats. Doak Dep. 21:24‒25,
22:1‒9, ECF No. 16-13. Her position required frequent interaction with others. See Def.’s Resp.
to Interrogatory 3, ECF No. 16-1.
Ms. Doak’s scheduled start time at work was 8:15 a.m. See Def.’s Ex. 27, ECF No. 14-
20 (“[m]y start time since 26 November 2007 has been 0815.”); Def.’s Ex. 24, ECF No. 14-19.
This was one of the later start times of anyone on her team. See Souther Dep. 49:12‒15, ECF
No. 14-3; Cohen Dep. 64:16‒19, ECF No. 14-2. The USCG’s Acquisition Directorate Standard
Operating Procedure defines the designated working hours as “normally the hours between 0600
and 1800 Monday through Friday. The CG-9 directorate is closed on weekends and government
holidays.” See Def.’s Ex. 7 ¶5.f, ECF No. 14-7. The USCG policy also allowed for flexible
hours, but stated that “[w]ork must be performed between the hours of 0600-1800, with all CF-9
employees/members present during the core hours of 0930-1030 and 1330-1430, Monday
through Friday.” See id. ¶ 7(a)(1).
2
Ms. Doak suffers from hypothyroidism and depression. She was diagnosed with both of
these in 1993. Doak Decl. ¶¶ 9, 10, Pl.’s Ex. A, ECF No. 17-1. In June 2009, 3 Ms. Doak was in
a car accident where she alleges that she “suffered closed head trauma.” Doak Decl. ¶ 6. As a
result, she began to suffer from migraines, various bodily pains, and obstructive sleep apnea.
Doak Decl. ¶ 8. In August 2009, Ms. Doak submitted a request for intermittent leave under the
Family and Medical Leave Act (“FMLA”) because of the medical problems that resulted from
her car accident. Greg Cohen, her supervisor, approved of that leave in September 2009. Def.’s
Statement Undisputed Facts ¶ 7, ECF No. 16. Mr. Cohen was Ms. Doak’s first-line supervisor;
her second-line supervisor was Rory Souther, Chief of Acquisition Resources Management. Id.¶¶ 2‒3.
Around December 2009, Mr. Cohen met with Ms. Doak to discuss her inability to work a
nine-hour shift and discuss the fact that she was absent from work a lot due to her illness. See
Def.’s Ex. 6 at 1‒2, ECF No. 14-6, Def.’s Ex. 8 at 6, ECF No. 14-8. On January 19, 2010, Mr.
Cohen issued an Employment Status Memorandum requesting that Ms. Doak return to full-time
duty immediately because she had nearly exhausted her FMLA leave, and her absences were
disrupting the work routine and having a negative impact on her projects. See Def.’s Ex. 9 ¶ 2,
ECF No. 14-9. In that letter, he explained that as of January 19, 2010, Ms. Doak had used 11.5
weeks of FMLA leave, and only had 2.5 days remaining, and that she currently had negative
leaves balances of 233 hours of sick leave and negative 35.15 hours of annual leave. Id. ¶ 3. He
further explained that Ms. Doak’s “excessive absences and continued failure to submit
3
The defendant asserts that the car accident occurred around August 2009. See
Def.’s Statement Undisputed Facts ¶ 7, ECF No. 16. Ms. Doak testified that her accident
occurred in June 2009. See Doak Dep. 18:12-13, ECF No. 16-13. The difference in date is not
material to this case. The fact remains that at some point between June 2009 and August 2009,
Ms. Doak was in a car accident that had subsequent deleterious effects on her health.
3
appropriate requests for leave in advance cannot continue to be excused and may result in
disciplinary action taken against” her. Id. ¶ 4.
Despite this letter, Ms. Doak was absent without leave (“AWOL”) for several hours each
on January 25, 2010, and January 26, 2010. On January 25, 2010, Mr. Cohen wrote another
memorandum to Ms. Doak explaining that she had exhausted her FMLA leave and that she had
to return to full-time duty status. See Def.’s Ex. 11, ECF No. 14-11. On February 22, 2010, Mr.
Cohen officially reprimanded Ms. Doak by letter for being AWOL on January 25 and January
26, 2010. See Def.’s Ex. 12, ECF No. 14-12. However, the Department agreed to hold the
official reprimand letter in abeyance so that Ms. Doak could provide medical documentation to
support her absences (1) unrelated to her FMLA leave; (2) her AWOL absences on January 25
and 26, 2010, and (3) her pending or outstanding leave requests related to medical issues. See
Def.’s Ex. 13, ECF No. 14-13. On March 24, 2010, Mr. Cohen submitted a request for medical
documentation to Ms. Doak, because the documentation she had provided, see, e.g., Def.’s Ex.
14, ECF No. 16-4, did not support her “absenteeism nor did it clearly address a diagnoses or
whether [her] medical conditions require reasonable accommodations.” Def.’s Ex. 15, ECF No.
14-14.
On April 16, 2010, Ms. Doak provided medical documentation to Mr. Cohen through her
doctor, Dr. Elizabeth P. Berbano. See Def.’s Ex. 16, ECF No. 16-5. In Dr. Berbano’s letter, she
explained that Ms. Doak suffered from various impairments such as major depressive disorder,
obstructive sleep apnea, hypothyroidism, and migraines. See id. She also recommended that
Ms. Doak be given the following “accommodations to facilitate increased work or productivity:
(a) telecommuting from home, (b) full-spectrum light for her work space,” “(c) anti-glare
computer screen (glare precipitates migraines), (d) work in an area in which she is not subject to
4
cold air currents that cause her muscle tension in the neck and head,” “(e) consideration for
adjustment of work schedule from 11 AM to 7 PM because of the difficulty of arising in the
morning,” and “(f) consideration for the option of weekend hours to make up for weekday hours
missed.” Id.The Coast Guard’s Division of Operational Medicine and Medical Readiness reviews
requests for accommodations made by civilian employees. Def.’s Statement Undisputed Facts ¶
21, ¶ 35. Dr. Erica Schwartz, a physician in the Division of Operational Medicine evaluated the
April 16, 2010 letter from Dr. Berbano and recommended to Mr. Cohen 4 that the following
accommodations be provided: (1) the addition of fluorescent light filters to existing lights, (2) an
anti-glare filter for the computer monitor, (3) use of sunglasses or anti-glare glasses, (4) noise-
canceling headsets, and (5) a dark, private area for use when medically necessary. See Def.’s Ex.
17, 5 ECF No. 16-6. Dr. Schwartz found the requests for telecommuting, a later start time, and
weekend hours to be medically unsupported, so she did not recommend those accommodations
to Mr. Cohen. See Schwartz Dep. at 12:12‒13:14, ECF No. 16-15.
On May 6, 2010, Mr. Cohen provided Ms. Doak with “a noise cancelling headset and
anti-glare screen for [her] computer screen, permitted her to wear sunglasses in the office as
needed, asked that three of the overhead lights directly above her desk be turned off, and
identified break rooms that the Plaintiff could use as necessary for medical reasons.” Def.’s
Statement Undisputed Facts ¶ 40. Mr. Cohen did not provide Ms. Doak with an 11:00 a.m. start
time because, he explained, “her position with an acquisition project required daily and frequent
4
The record shows that Mr. Cohen did not have Ms. Doak’s medical
documentation record before him when evaluating her accommodation request, due to Ms.
Doak’s privacy concerns. See Def.’s Statement Undisputed Facts ¶ 33, ECF No. 14.
5
This memorandum was issued by Dr. Schwartz’s supervisor, Captain Mike
Boquard.
5
interaction with project staff, other business managers, resource staff, and numerous agencies,”
and an 11:00 a.m. start time “would place the project and resource office in a hardship position.”
Id. ¶ 43. See also Def.’s Ex. 19 ¶ 4, ECF No. 16-7 (“Your billet is a matrix position with a Coast
Guard acquisition project, which requires you to interact daily, and frequently with the project
staff, other business managers and resource staff and numerous external agencies. I do not
believe you will be able to meet those obligations with a work schedule that does not have you
arrive until 1100 daily and therefore would place the project and resource office in a hardship
position by requiring personnel from other projects to attend these meetings on the behalf of the
resource office.”).
In response, on May 21, 2010, Ms. Doak wrote to Mr. Cohen, explaining that she would
prefer a 10:00 a.m. start time, but would “work toward a 9:00 a.m. arrival” time. See Def.’s Ex.
22, ECF No. 16-8. Mr. Cohen replied via email on June 1, 2010, explaining that a 10:00 a.m.
start time was not acceptable; he instead offered her a 9:00 a.m. start time. See Def.’s Ex. 23,
ECF No. 14-18. Ms. Doak did not accept a 9:00 a.m. start time at that time. Doak Dep. 237:7‒
18. As such, her scheduled start time remained 8:15 a.m. See Doak Dep. 238:2‒9.
By the end of May 2010, Ms. Doak was arriving to work anywhere between 10:00 a.m.
and Noon. See Doak Dep. 271:3‒10. Mr. Cohen issued another letter of reprimand to her on
May 24, 2010, based on more than 30 AWOL hours that she had incurred since her February
2010 letter of reprimand. See Def.’s Ex. 24, ECF No. 14-19.
On July 16, 2010, Ms. Doak submitted another letter from Dr. Berbano “clarifying” her
April letter. See Def.’s Ex. 25, ECF No. 16-9. In that letter, Dr. Berbano modified her
recommended start time to 9:30 a.m. Id. Dr. Brent Pennington responded to that request on July
20, 2010, stating that Dr. Berbano’s letter did not provide medical justification for “an arbitrary
6
start time of 0930 instead of 0830 or 0900.” Def.’s Ex. 26, ECF No. 16-10. On July 23, 2010,
Ms. Doak agreed to a 9:00 a.m. arrival time at work. Def.’s Ex. 27, ECF No. 14-20. See also
Souther Dep. 13, ECF No. 14-3. Despite that, she was still “unable to arrive at work on time.”
Def.’s Statement Undisputed Facts ¶ 61. In addition, Ms. Doak was also AWOL on July 27, 28,
29, 30, and August 2, 3, and 4, 2010. Id. ¶¶ 66-67. From January 31 to August 9, 2010, Ms.
Doak had missed approximately 52 percent of her scheduled work hours. Id. ¶ 64. See also
Def.’s Ex. 32 at 1, ECF No. 14-24.
On August 9, 2010, Mr. Cohen issued a notice to Ms. Doak of her proposed removal
from her position due to (1) her “medical inability to perform the essential duties of [her]
position, due to various medical reasons, which have caused [her] to be unable to maintain [her]
regular work schedule,” and (2) her hours in AWOL status. Id. ¶ 1. The union responded to the
Notice of Proposed Removal on behalf of Ms. Doak on August 31, 2010. See Def.’s Ex. 33,
ECF No. 14-25. On September 30, 2010, after considering the evidence before him, Mr. Souther
determined that Ms. Doak’s removal “was warranted to promote the efficiency of the service.”
See Def.’s Statement Undisputed Facts ¶ 68.
The plaintiff contacted an Equal Employment Opportunity (“EEO”) counselor on
October 6, 2010, challenging her September 30 removal. Id. ¶ 73. The Department entered into
a settlement agreement under which it agreed to allow Ms. Doak to retire effective October 31,
2010 instead of being terminated. Id. ¶ 75. See also Def.’s Ex. 36, ECF No. 14-28. On
February 22, 2011, Ms. Doak filed a formal complaint against the Department, and on June 19,
2012, the Department issued a final agency decision, in which it found that Ms. Doak “failed to
prove by a preponderance of the evidence that USCG discriminated against” her. See Pl.’s Ex. 7,
ECF No. 17-1.
7
Ms. Doak then filed the instant action, alleging that the Department discriminated against
her by “discharging her from her employment because of her disability,” and by failing to
reasonably accommodate her disability. See Compl. Counts I & II. She also alleges that the
Department retaliated against her by terminating her for requesting reasonable accommodations
in violation of the Rehabilitation Act. See Compl. Count III. The Department moved to dismiss
for Ms. Doak’s failure to exhaust her reasonable accommodation claims and certain disparate 6
treatment claims, and moved for summary judgment on all claims. See Def.’s Mot. Summ. J. 2,
ECF No. 14. The Court now turns to the relevant legal standards.
III. ANALYSIS
A. Legal Standards
1. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a
court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is
the plaintiff’s burden to establish that the court has subject matter jurisdiction. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). “Dismissal for lack of subject-matter
jurisdiction because of the inadequacy of the federal claim is proper only when the claim is ‘so
insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely
6
In Count I of the Complaint, Ms. Doak alleges that “Defendant violated the
Rehabilitation Act by discriminating against Plaintiff and discharging her from her employment
because of her disability, its perception of her as if she were disabled, and its record of her
disability.” Compl. ¶ 26. Though not explicitly couched in “disparate treatment” terms, the
parties’ briefs reflect an understanding that Count I states plaintiff’s disparate treatment claim.
See Def.’s Mot. Summ. J. 24, 27, ECF No. 14; Pl.’s Opp’n Mot. 9, ECF No. 17. The Court also
construes Count I as a disparate treatment claim and analyzes it as such.
8
devoid of merit as not to involve a federal controversy.’” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S.
661, 666 (1974)).
Because subject matter jurisdiction focuses on the Court’s power to hear a claim, the
Court must give the plaintiff’s factual allegations closer scrutiny than would be required for a
12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001). Thus, the court is not limited to the
allegations contained in the complaint. See Wilderness Soc’y v. Griles, 824 F.2d 4, 16 n.10 (D.C.
Cir. 1987).
2. Summary Judgment
A court may grant summary judgment when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
“genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-
movant. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must
9
“eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475
F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the
light most favorable to the non-movant. See Anderson, 477 U.S. at 255. Nevertheless,
conclusory assertions offered without any evidentiary support do not establish a genuine issue
for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
B. Failure to Exhaust
As a threshold matter, the defendant argues that Ms. Doak’s failure to accommodate
claim in Count II, and certain of her disparate treatment claims in Count I should be dismissed
for failure to exhaust administrative remedies. Under the Rehabilitation Act, federal employees
may file an action “only after exhausting their administrative remedies before the relevant
agency for each allegedly discriminatory act.” Mahoney v. Donovan, 824 F. Supp. 2d 49, 58
(D.D.C. 2011). “[F]ailure to exhaust administrative remedies is a jurisdictional defect, requiring
dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1).” Ellison v. Napolitano, 901
F. Supp. 2d 118, 124 (D.D.C. 2012) (citing Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006));
Moore v. Schafer, 573 F. Supp. 2d 216, 219 (D.D.C. 2008). Because it is a jurisdictional
requirement, “the plaintiff has the burden to plead and prove it.” Ellison, 901 F. Supp. 2d at 124
(citing Carty v. District of Columbia, 699 F. Supp. 2d 1, 2 n.2 (D.D.C. 2010) (“under the
Rehabilitation Act, exhaustion is a jurisdictional requirement that a plaintiff has the burden to
plead and prove”)).
Under the Rehabilitation Act, in order to exhaust, “an aggrieved person must initiate
contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory
. . . .” 29 C.F.R. § 1614.105(a)(1). The Counselor holds an initial counseling session, advises
the complainant of certain rights, and holds a final interview. 29 C.F.R. § 1614.105(b)(1), (c),
10
(d). If the matter is not resolved through counseling, the complainant may file a formal
administrative complaint. 29 C.F.R. § 1614.106(b). “Each incident of discrimination and each
retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment
practice[,]’” and a party must exhaust her administrative remedies for each discrete act of
discrimination alleged or lose the ability to recover for it. Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114‒15 (2002).
As the plaintiff pled in her Complaint, she contacted an EEO counselor on October 6,
2010, challenging the Department’s September 30, 2010 removal decision. Def.’s Statement
Undisputed Facts ¶ 73, Compl. ¶¶ 21‒23. She followed-up this conversation by filing a formal
administrative complaint on February 22, 2011. In the formal administrative complaint, Ms.
Doak stated that she was subjected to a continuous “hostile work environment 7 . . . from January
2009 to September 30, 2010,” citing issues spanning that entire time period, including the denial
of certain proposed accommodations. See Def.’s Ex. 35, ECF No. 14-27. Her initial October 6,
2010 contact with an EEO counselor, however, occurred more than 45 days after USCG
responded to Ms. Doak’s request for accommodations: Ms. Doak requested accommodations on
April 16, 2010, and again on July 16, 2010, to which the Department responded on May 6, 2010,
and July 20, 2010, respectively. 8 Her October 6, 2010 contact with an EEO counselor (78 days
after the final July 20, 2010 denial)—the first step in the administrative remedial process—
therefore renders her failure to accommodate claims untimely. 9
7
Ms. Doak does not raise a hostile work environment claim in her Complaint
before this Court, nor were these issues raised in either party’s briefs.
8
Ms. Doak does not quarrel with the Department’s argument that the claim accrued
upon the denial of her accommodation requests.
9
To make October 6, 2010 timely, the discriminatory action complained of would
have to have occurred on August 22, 2010 or later. Even the August 9, 2010 date Ms. Doak
alleged was the date she first became aware of the discrimination (the date in which the
11
The plaintiff argues that USCG did not raise this failure to exhaust argument in the
administrative proceedings, 10 and as such, waived it. See Nurriddin v. Bolden, 674 F. Supp. 2d
64, 87-88 (D.D.C. 2009) (“waiver occurs when the agency decides the [administrative]
complaint on the merits without addressing the untimeliness defense” (citation omitted)). See
also Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997); Johnson v. Billington, 404 F.
Supp. 2d 157, 162 (D.D.C. 2005) (“when a complaint has proceeded through administrative
channels prior to arriving at the federal courthouse, and the agency has accepted, investigated
and decided that complaint on its merits without raising the exhaustion issue, the exhaustion
defense may be found to have been waived”). However, where the relevant exhaustion inquiry is
jurisdictional, as it is under the Rehabilitation Act, courts do not entertain equitable defenses
such as waiver. 11 See, e.g., Uzlyan v. Solis, 706 F. Supp. 2d 44, 56 (D.D.C. 2010) (“exhaustion
Department issued its notice of proposed removal) would not make her October 6, 2010 initial
contact with an EEO counselor timely with respect to her failure to accommodate claims. See
Doak Dep. 37:2‒6, ECF No. 16-13.
10
As set forth above, the Department investigated Ms. Doak’s formal complaint and
issued a final decision on June 19, 2012. See Pl.’s Ex. 7, ECF No. 17-1. It did consider her
failure to accommodate as well as her disparate impact claims, and at no point did it raise the
timeliness argument. Id.11
Not all district court judges in this court have agreed on this proposition, due to
differing interpretations of the D.C. Circuit’s decision in Spinelli v. Goss, 446 F.3d 159, 162
(D.C. Cir. 2006). Most courts have read Spinelli as holding that the Rehabilitation Act’s
exhaustion requirement is jurisdictional, and therefore, not subject to equitable defenses, based
on the court’s language that: “[t]he district court also should have dismissed Spinelli’s
Rehabilitation Act claim for lack of jurisdiction on the ground that he failed to exhaust his
administrative remedy. The Act limits judicial review to employees aggrieved by the final
disposition of their administrative complaint.” 446 F.3d at 162 (internal quotation marks and
citations omitted) (emphasis added). See, e.g., Ellison v. Napolitano, 901 F. Supp. 2d 118, 124
(D.D.C. 2012); Ragsdale v. Holder, 668 F. Supp. 2d 7, 16–17 (D.D.C. 2009); Porter v. Jackson,
668 F. Supp. 2d 222, 230 n.6 (D.D.C. 2009); Int’l Union v. Clark, No. 02-1484 (GK), 2006 WL
2598046, at *9–10 (D.D.C. Sept. 11, 2006). However, in Koch v. Schapiro, the court found the
“final disposition of their administrative complaint” language in Spinelli more dispositive, and
found that “because there was a final disposition of [the plaintiff’s administrative] complaint—
albeit by way of dismissal and not on the merits—his Rehabilitation Act claim is not foreclosed
by Spinelli v. Goss,” even though the plaintiff refused to participate in the administrative
12
of administrative remedies under the Rehabilitation Act is a jurisdictional requirement and,
therefore, cannot be waived or tolled”); Ragsdale v. Holder, 668 F. Supp. 2d 7, 16‒17 (D.D.C.
2009) (“The District of Columbia Circuit has interpreted the exhaustion requirement of section
501 of the Rehabilitation Act as presenting a strict jurisdictional barrier to the filing of judicial
complaints that fail to comply with that provision.”); see also Spinelli, 446 F.3d at 162(explaining that under the Rehabilitation Act, “[s]uch ‘jurisdictional exhaustion,’ as we have
called it, may not be excused”); accord Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d
699, 706 (D.C. Cir. 2009) (“Because we hold that the CAA’s counseling and mediation
requirements are jurisdictional, the district court correctly ruled that it was not empowered to
apply the equitable doctrine of vicarious exhaustion to excuse compliance with those
requirements.”); Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004) (“If the
statute does mandate exhaustion, a court cannot excuse it.”). As such, even if the Department
did not previously raise the exhaustion argument, the Court cannot hear the plaintiff’s failure to
accommodate claims because she did not timely contact an EEO counselor within 45 days of the
Department issuing a decision that she viewed as discriminatory. As such, Ms. Doak’s failure to
accommodate claim in Count II must be dismissed for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1).
proceedings on grounds of futility. 777 F. Supp. 2d 86, 90‒92 (D.D.C. 2011) (holding on
prudential, and not jurisdictional grounds, that there “was no reason to excuse” failure to
exhaust). See also Perry v. U.S. Dep’t of State, 669 F. Supp. 2d 60, 65 (D.D.C. 2009) (finding
that “Mr. Perry’s failure to comply with the EEOC’s 45-day time limit in 29 C.F.R. §
1614.105(a)(1) does not divest the Court of statutory jurisdiction under Section 505 of the
Rehabilitation Act” because the State Department finally disposed of Mr. Perry’s administrative
complaint before Mr. Perry filed suit). This Court aligns itself with the former line of cases that
read the Rehabilitation Act and Spinelli as imposing a strict jurisdictional barrier to filing judicial
complaints. And moreover, even if the Court did align itself with the latter two cases, it would
not help Ms. Doak, as her claims would still fail on the merits.
13
Applying that same principle to Ms. Doak’s disparate impact claims in Count I, 12 the
Court finds that any agency action of which she complained occurring before August 22, 2010
(45 days before October 6, 2010, when she first contacted an EEO counselor), was not properly
and timely exhausted in accordance with 29 C.F.R. § 1614.105. 13 See Lipscomb v. Winter, 577
F. Supp. 2d 258, 271‒273 (D.D.C. 2008) (finding that acts occurring before the 45-day window
to file a complaint with an EEO counselor were time-barred). As such, those claims are also
dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). 14
C. Discrimination
Even if the unexhausted claims 15 could survive a motion to dismiss for lack of subject
matter jurisdiction, the Court would nevertheless enter judgment for the defendant on the merits
12
The defendant maintains that the plaintiff failed to address, and therefore
conceded, the defendant’s arguments pertaining to the failure to exhaust the Count I disparate
treatment claims. See Def.’s Reply 5 n.1, ECF No. 18. The Court finds that the plaintiff’s
treatment of the defendant’s failure to exhaust argument—though terse—did not address any
Count in particular, and therefore that the plaintiff’s treatment of the issue conceded nothing.
13
Those claims are, to the extent they are challenged as adverse employment actions
(which is not entirely clear based on the Complaint and Ms. Doak’s Opposition brief): the
February 22, 2010 and May 24, 2010 letters of Reprimand, the August 9, 2010 Notice of
Proposed Removal; and all the AWOL charges included within those letters and the Notice.
14
Moreover, Ms. Doak failed to cooperate during the EEO investigation (see, e.g.,
Doak Dep. at 42:25‒43:8, ECF No. 16-13) and that in itself, constitutes a failure to exhaust. See
Bell v. Donley, 724 F. Supp. 2d 1, 13 (D.D.C. 2010) (“it is well-established that failure to
cooperate in the investigation will be equated with a failure to exhaust administrative remedies.”
(citing Rann v. Chao, 346 F.2d 192, 197 (D.C. Cir. 2003)); see also Wilson v. Pena, 79 F.3d
154, 165 (D.C. Cir. 1996) (“if the plaintiff fails to make a good-faith attempt to comply with
reasonable agency requests for information, the policy underlying the [exhaustion] doctrine is
not served.”); Smith v. Koplan, 362 F. Supp. 2d 266, 268 (D.D.C. 2005) (“Courts equate cases of
failing to cooperate with the agency as cases where a plaintiff has failed to exhaust her
administrative remedies.”)
15
The claims that remain as timely are: with respect to Count I, the challenge to the
September 30, 2010 Notice of Proposed Removal Decision, and all of Count III.
14
on all Counts, because Ms. Doak has not shown that she was unlawfully discriminated against or
retaliated against in violation of the Rehabilitation Act.
The Rehabilitation Act provides that a “qualified individual with a disability” may not
“be subjected to discrimination” by any federal agency “solely by reason of her or his disability.”
29 U.S.C. § 794(a); see also Mogenhan v. Napolitano, 613 F.3d 1162, 1165 (D.C. Cir. 2010).
Claims of discrimination brought under the Rehabilitation Act are analyzed similarly to claims
brought under the Americans with Disabilities Act of 1990 (“ADA”). 29 U.S.C. § 794(d).
Under the ADA, claims of discrimination include disparate treatment claims and failure to
accommodate claims. See, e.g., Lee v. District of Columbia, 920 F. Supp. 2d 127, 132‒33
(D.D.C. 2013) (“Claims of discrimination under the ADA can take one of four forms: intentional
discrimination, disparate impact, hostile work environment, and failure to accommodate.”
(citations omitted)). Ms. Doak brings disparate treatment and failure to accommodate claims in
this action, and the Court analyzes both in turn.
1. Disparate Treatment
Courts analyze disparate treatment disability discrimination claims under the McDonnell
Douglas burden-shifting framework. See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288‒89
(D.C. Cir. 1998) (en banc). Under this framework, the plaintiff bears the burden of establishing
“a prima facie case of discrimination by a preponderance of the evidence. If the plaintiff
establishes a prima facie case, the employer must then articulate a legitimate, non-discriminatory
reason for its actions. The plaintiff must then demonstrate that the employer’s stated reason was
pretextual and that the true reason was discriminatory.” Taylor v. Small, 350 F.3d 1286, 1292
(D.C. Cir. 2003) (citing Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002)). A plaintiff can
establish a prima facie case by showing that “(1) she is a member of a protected class; (2) she
15
suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference
of discrimination.” See Stella, 284 F.3d at 145 (quoting Brown v. Brody, 199 F.3d 446, 452
(D.C. Cir. 1999)).
The D.C. Circuit, however, has modified the McDonnell-Douglas test, finding that “the
question whether the employee made out a prima facie case is almost always irrelevant.” Brady
v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). Therefore, instead,
in considering an employer’s motion for summary judgment or judgment as a
matter of law [in a disparate treatment suit where an employee has suffered an
adverse employment action and an employer has asserted a legitimate, non-
discriminatory reason for the decision], the district court must resolve one central
question: Has the employee produced sufficient evidence for a reasonable jury to
find that the employer’s asserted non-discriminatory reason was not the actual
reason and that the employer intentionally discriminated against the employee on
the basis of race, color, religion, sex, or national origin?
Id. at 494 (emphasis added). The Supreme Court has explained that “a reason cannot be proved
to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)
(emphasis in original).
Ms. Doak asserts several adverse employment actions: the Department’s August 9, 2010,
Notice of Proposed Removal, the Department’s September 30, 2010, decision to terminate her
employment, 16 the Department’s general failure to accommodate her disability, the Department
16
As a threshold matter, the Department argues that there was no adverse
employment action here because Ms. Doak was never terminated—but was instead permitted to
retire. See Def.’s Mot. Summ. J. 27–28, ECF No. 14. Ms. Doak argues that she was
constructively discharged because her retirement was not voluntary, and her proposed removal
on August 9, 2010, occurred when “she failed to adhere to the 9:00 a.m. start time chosen by her
supervisors that did not accommodate her disabilities.” Pl.’s Opp’n Mot. 13–14.
An employee’s resignation or retirement is presumed to be voluntary, unless the
employee overcomes the presumption by showing that the resignation or retirement was
involuntary, and therefore qualifies as a constructive discharge. Aliotta v. Bair, 614 F.3d 556,
566–67 (D.C. Cir. 2010) (citing Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006) (Rogers,
16
issuing her letters of reprimand, and the Department charging her with being AWOL. See, e.g.,
Def.’s Ex. 20, Resp. to Interrogatory 8; Compl. ¶¶ 9, 26, 28, 30.
Regardless of the adverse employment action taken in this case—or whether any of them
actually constitutes an adverse employment action—Ms. Doak has not “produced sufficient
evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was
not the actual reason and that the employer intentionally discriminated” against her. Brady, 520
F.3d at 494. The Department’s non-discriminatory reason for proposing to remove Ms. Doak
was her perpetual attendance problem. In its August 9, 2010 Notice of Proposed Removal, the
Department explained that it was considering Ms. Doak’s removal from federal service because
of her “medical inability to perform the essential duties of [her] position . . . which have caused
[her] to be unable to maintain [her] regular work schedule,” as well as her being “absent without
leave.” Def.’s Ex. 32. That Notice also listed all the dates in 2010—beginning after Ms. Doak’s
February 2010 reprimand for the same problem—in which Ms. Doak was in AWOL status. The
J., concurring)). If the plaintiff can show she was constructively discharged, that will constitute
an adverse employment action. Joyce v. Office of Architect of Capitol, No. 12-1837(JEB), 2013
WL 4758186, at *7 (D.D.C. Sept. 5, 2013).
A plaintiff suffers a constructive discharge when an employer deliberately denies the
plaintiff a reasonable accommodation, and the employer knows that the denial will make the
plaintiff’s working conditions so intolerable that the plaintiff will be forced to resign. Floyd v.
Office of Representative Sheila Jackson Lee, No. 11-1228(RC), 2013 WL 5429265, at *15
(D.D.C. Sept. 30, 2013). However, an employee’s resignation or retirement, when the only other
available option for the employee is removal by the employer for-cause, does not qualify as
constructive discharge. Keyes v. District Of Columbia, 372 F.3d 434, 439–40 (D.C. Cir. 2004)
(explaining that when faced with the choice of retirement or for-cause termination, choosing
retirement is a difficult choice for the employee, but not an involuntary choice).
The Court need not resolve this difficult issue because, even if it assumes without
deciding that Ms. Doak was constructively discharged and therefore suffered an adverse
employment action on September 30, 2010, as set forth above, Ms. Doak has not provided
sufficient evidence for a reasonable jury to find that the Department’s asserted non-
discriminatory reason was not the actual reason and that it intentionally discriminated against
her. Therefore, to the extent there is any dispute on this issue, it is ultimately immaterial to the
outcome of this case.
17
record shows that from January to July of 2010, Ms. Doak missed over 50 percent of her work
hours, and from July 2010 to October 2010, missed over 40 percent of her work hours. See id. at
1; Def.’s Ex. 34 ¶ 6. Despite being issued memoranda in January, a reprimand in February,
another memorandum in May, and several emails from supervisors in June and July all regarding
her poor attendance, Ms. Doak continued to have problems showing up to work on time—or
even at all.
The Department also explained that Ms. Doak’s absences had negative effects on her
team, and caused the team projects she worked on to suffer. As Mr. Souther noted in his Notice
of Decision on Proposed Removal, Ms. Doak’s “frequent unscheduled absences prevent[ed]
[her] from participating in program meetings and other work group collaboration essential to full
performance, creating an undue hardship on co-workers required to perform these
responsibilities on her behalf.” Def.’s Ex. 34 ¶ 3, ECF No. 14-26. In addition, frequent absences
caused her co-workers to lose time on their assignments, and also caused her to miss the training
required of her position. Id. The repeated absences, and the deleterious effect they had on her
team at the Coast Guard, therefore served as legitimate reasons for terminating Ms. Doak that are
distinct from her disability.
Ms. Doak has provided no evidence to the contrary indicating that this reason was
pretextual and that discrimination because of her disability was the real reason. She does not
dispute that she had an attendance problem, but instead argues that her “absences were due to
Defendant’s failure to accommodate her” by failing to allow her to come in later in the day and
alter her work schedule. Pl.’s Opp’n Mot. 14‒15, ECF No. 17. But her failure to accommodate
claim is a separate claim that is addressed below. Ms. Doak has presented no evidence that her
supervisors discriminated against her because of her disability or harbored any animus against
18
disabled individuals. Ms. Doak therefore failed to “produce[] sufficient evidence for a
reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual
reason” for terminating her. See Brady, 520 F.3d at 494.
2. Reasonable Accommodations
Ms. Doak next asserts that the Department discriminated against her by failing to
reasonably accommodate her disability. To establish a prima facie case of discrimination based
on the failure to accommodate under the Rehabilitation Act, a plaintiff must proffer evidence
from which a reasonable fact-finder could find that (1) she had a qualifying disability within the
meaning of the statute, (2) her employer had notice of the disability, (3) with reasonable
accommodation, she could perform the essential functions of the position, and (4) she requested
an accommodation but the employer denied her request. See Graffius v. Shinseki, 672 F. Supp.
2d 119, 125 (D.D.C. 2009) (citing Scarborough v. Natsios, 190 F. Supp. 2d 5, 19 (D.D.C.
2002)). In the D.C. Circuit, failure to accommodate claims are not subject to the McDonnell
Douglas burden-shifting framework. See Aka, 156 F.3d at 1288 (explaining that the plaintiff’s
“reasonable-accommodation claim . . . is not subject to analysis under McDonnell-Douglas, but
has its own specialized legal standards”); accord Graffius, 672 F. Supp. 2d at 125 n.8.
a. Accommodations made in the workplace
The D.C. Circuit has explained that “an employer is not required to provide an employee
that accommodation he requests or prefers, the employer need only provide some reasonable
accommodation.” Aka, 156 F.3d at 1305 (quoting Gile v. United Airlines, Inc., 95 F.3d 492, 499
(7th Cir. 1996)). The regulations governing accommodations under the ADA, and in turn, the
Rehabilitation Act, define reasonable accommodations as “[m]odifications or adjustments to the
work environment, or to the manner or circumstances under which the position held or desired is
19
customarily performed, that enable an individual with a disability who is qualified to perform the
essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii). A “qualified individual”
under the Rehabilitation Act is one who “satisfies the requisite skill, experience, education, and
other job-related requirements of the employment position such individual holds or desires and,
with or without reasonable accommodation, can perform the essential functions of such
position.” 29 C.F.R. § 1630.2(m).
In this case, Ms. Doak’s doctor, Dr. Berbano recommended that six accommodations be
made regarding Ms. Doak’s disabilities of migraines, sleep apnea, depressive disorder, and
hypothyroidism: (1) telecommuting from home, (2) full-spectrum light for her work space, (3)
anti-glare computer screen, (4) work in an area less subject to cold air currents, 17 (5) adjustment
of work schedule to 11 a.m. to 7 p.m., (6) consideration of optional weekend hours. See Def.’s
Ex. 16, ECF No. 16-5. Dr. Schwartz, the Coast Guard doctor who reviewed Dr. Berbano’s
suggestions recommended that Mr. Cohen grant the following accommodations to Ms. Doak: (1)
the addition of fluorescent light filters to existing lights, (2) an anti-glare filter for the computer
monitor, (3) use of sunglasses or anti-glare glasses, (4) noise-canceling headsets, and (5) a dark,
private area for use when medically necessary. See Def.’s Ex. 17, ECF No. 16-6. The only
requests she did not recommend were the adjusted work schedule hours and telecommuting,
which she did not view as medically supported. See Schwartz Dep. at 12:12‒13:14, ECF No. 16-
15.
17
It is not clear from the record whether this accommodation was ever granted. Dr.
Schwartz did not recommend this to Mr. Cohen, and Mr. Cohen did not include this
accommodation in his May 6, 2010 letter to Ms. Doak. However, it seems that Ms. Doak
rejected Mr. Cohen’s cubicle move suggestion because there was an air vent above the new
cubicle that would have put cold air directly on her head. See Doak Dep. at 138:24‒25, 139:1.
Thus, her decision to remain at her regular cubicle appeared to cure the problem. Regardless,
neither party suggests that the failure to resolve an air current issue is what caused Ms. Doak’s
excessive tardiness and absenteeism.
20
Mr. Cohen immediately implemented all of Dr. Schwartz’s suggestions. The email
correspondence on the record shows that Mr. Cohen worked diligently to ensure that Ms. Doak
had an accommodated work space immediately. See, e.g., Cohen Dep. 22:9-14, ECF No. 14-2.
(“The goal was always to get Edna back to work, so I provided everything in this April 28, 2010
[Dr. Schwartz] memo as best as I could.”). For instance, on May 5, 2010, Mr. Cohen contacted a
Facilities Specialist to request that three overhead lights be turned off above Ms. Doak’s cubicle.
See Def.’s Ex. 21, ECF No. 14-17. His May 6, 2010 letter to Ms. Doak also explained that he
provided Ms. Doak with an anti-glare device for her computer and noise-cancelling headsets,
allowed her to wear sunglasses in the office, and provided her a dark, private area for use when
medically necessary. See Def.’s Ex. 19 ¶ 3, ECF No. 16-7. When Ms. Doak expressed
dissatisfaction with her cubicle location, Mr. Cohen offered to move her to a different cubicle,
“farther from the bright glare of the windows,” which Ms. Doak did not accept, explaining that
she needed to check with the union first. Id. ¶3.d. Though the Department did not ultimately
implement every accommodation requested by Ms. Doak, it did make reasonable
accommodations, which is all the law requires it to do. See Aka, 156 F.3d at 1305.
b. Modified work schedule
Ms. Doak takes issue with the fact that the Department “denied [her] requests to
telework, 18 arrive at a later start time of 11:00 a.m., and to work optional weekend hours” to
make up any lost time during the week. See Pl.’s Opp’n Mot. 12. The ADA, and in turn, the
Rehabilitation Act defines “reasonable accommodation” to include “part-time or modified work
18
The Department also explained, and it is clear from the record that Ms. Doak
never made an appropriate, formal request to telework. See Def.’s Resp. to Interrogatory 2 at 2‒
3, ECF No. 16-1 (“Plaintiff never made an appropriate, formal request to telework in the manner
required of all employees . . . [t]hus, because Plaintiff never submitted a formal request, there
was no request to deny.”).
21
schedules.” 42 U.S.C. § 12111(9)(B). Indeed, the D.C. Circuit has explained that section 501 of
the Rehabilitation Act “requires an agency to consider work at home . . . as [a] potential form[]
of accommodation.” Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir 1994); see also Langon v. HHS,
959 F.2d 1053, 1060‒61 (D.C. Cir. 1992); McNair v. District of Columbia, No. 12-248(JEB),
2014 WL 242913, at *4 (D.D.C. Jan. 23, 2014) (“It is true that an employer must consider
telecommuting as a potential form of reasonable accommodation.”).
As courts in this jurisdiction have explained, the modified work schedule as a reasonable
accommodation analysis generally turns on the nature of the position for which the employee is
requesting the accommodation. For instance, in Carr v. Reno, the plaintiff requested, inter alia,
a flexible arrival time to work, because she had an ear disability that caused her periodic
dizziness, nausea, and vomiting, and that made it difficult for her to make it into work at her
scheduled 8:00 a.m. arrival time. 23 F.3d at 527, 529, 531. Her employer denied that request
because of a daily 4:00 p.m. deadline that the employer had to make, that it would not be able to
if Ms. Carr could not arrive to work at 8:00 a.m. each day and work a full eight-hour shift. Id. at
530. The court held that “to require an employer to accept an open-ended ‘work when able’
schedule for a time-sensitive job would stretch ‘reasonable accommodation’ to absurd
proportions and imperil the effectiveness of the employer’s public enterprise.” Id. at 531. The
daily deadline, in other words, was the critical element of her position that rendered the
employee’s proposed accommodation of a flexible work time unfeasible. See Breen v. Dep’t of
Transp., 282 F.3d 839, 843 (D.C. Cir. 2002).
In contrast, in Langon, the plaintiff, who suffered from multiple sclerosis, requested that
she be allowed to perform her job as a computer programmer at home. See Langon, 959 F.2d at1054‒55. The court found that summary judgment for the employer was inappropriate because
22
there was a genuine dispute of material fact as to whether the plaintiff could have performed the
essential functions of her job—computer programming—at home. See id. at 1061. Similarly in
Breen, the court found summary judgment for the employer inappropriate because there was no
“critical element” to the plaintiff’s position that made her proposed alternative work schedule,
which included an “hour of quiet time after business hours to do solid filing,” incompatible with
the essential functions of her position as a file clerk. 282 F.3d at 840, 843.
Lower courts have interpreted Langon, Carr, and Breen as establishing a dichotomy
wherein a specific and well-defined accommodation is deemed reasonable, and an erratic and
unpredictable accommodation, such as an open-ended “work whenever you want schedule” is
unreasonable as a matter of law. See, e.g., Solomon v. Vilsack, 845 F. Supp. 2d 61, 71 (D.D.C.
2012) (“D.C. Circuit precedent makes clear that an employee’s request to work whenever he or
she wants is unreasonable as a matter of law. On the other hand, specific and well-defined
accommodations are not unreasonable.” (internal quotation marks and citations omitted));
Scarborough, 190 F. Supp. 2d at 26 n.21 (explaining that a request “to work only on the
infrequent and unpredictable occasions” that the plaintiff felt able “was nothing like the specific
and well-defined accommodations at issue in Langon and Breen, and thus was not reasonable”).
Other courts have also agreed with this legal proposition. See Fisher v. Vizioncore, Inc., 429 F.
App’x 613, 616 (7th Cir. 2011) (noting that “an open-ended schedule with the privilege to miss
workdays frequently and without notice” is not reasonable as a matter of law); E.E.O.C. v.
Yellow Freight Sys., Inc., 253 F.3d 943, 949 (7th Cir. 2001) (explaining that “the ADA does not
protect persons who have erratic, unexplained absences, even when those absences are a result of
a disability”) (quoting Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999)).
23
For instance, in Scarborough v. Natsios, the court found that the plaintiff’s request for
leave without pay anytime that he was unable to report to work because of his chronic flu-like
symptoms was unreasonable as a matter of law. 190 F. Supp. 2d at 25. The court elaborated that
the plaintiff’s request that he be granted leave “in an erratic, unpredictable manner—whenever
[the] plaintiff felt he needed to miss work”— was unreasonable as a matter of law, citing Carr.
Id. The court similarly found such a “work whenever the employee wants” schedule request
unreasonable as a matter of law in Solomon v. Vilsack, 845 F. Supp. 2d at 72‒73. In that case,
the plaintiff Ms. Solomon’s ordinary working schedule was 7:30 a.m. to 6:00 p.m., four days a
week, with Wednesdays off. Id. at 67. She requested a flexible schedule generally, and asked
her employer if she could take it “day-by-day” because she was experiencing difficulty working
her scheduled hours in light of her disability that included various mental health disorders. Id. at
72. The court found that because “she did not seek to shift her schedule in this matter on any
predictable or regular basis,” her request was really a request for “an open-ended schedule.” Id.
As such, it was unreasonable as a matter of law. Id. at 73.
Like the requests made by the plaintiffs in Solomon and Scarborough, Ms. Doak’s
request falls into the camp of the open-ended “work whenever you want” schedule that is
unreasonable as a matter of law. In her initial April 2010 request for accommodations, Ms. Doak
requested to be able to telework, to be given an adjusted schedule of 11:00 a.m. to 7:00 p.m., and
to be allowed to make up missed hours on the weekend. See Def.’s Ex. 16. Though the
alternative hours request was specific enough, in Ms. Doak’s case, it was neither predictable nor
an achievable reality. From April 2010 until she was notified of her removal in September 2010,
Ms. Doak’s attendance record was all over the place. Mr. Souther’s Notice of Proposed
Removal of Ms. Doak dated August 9, 2010 illustrates this. See generally Def.’s Ex. 32. For
24
instance, Ms. Doak was AWOL for the entire day on May 10, May 11, and May 20, and August
2, 2010. Id. She was AWOL for half the day or more on May 18, May 19, June 1, June 28, July
8, July 9, July 16, and July 21, 2010. Id. She also had hours in AWOL status (ranging from 15
minutes to 3 ¾ hours) on thirty-two (32) other work days between May and August 2010. See
id.; see also Ex. 28, ECF No. 16-11 (listing all the dates in 2010 that Ms. Doak was absent or
late and the reasons why). 19
Moreover, it is undisputed that Ms. Doak’s schedule was unpredictable. Ms. Doak
herself testified that her arrival time to work was inconsistent, regardless of the start time she
requested, see Doak Dep. 51‒52, and that sometimes she would arrive to work as late as 2:00
p.m. Id. at 51:21‒22. Ms. Doak also stated that sometimes she was “knocked out” for the entire
day and not able to get up or come into work at all, let alone late. Doak Dep. at 51:16‒17. In
addition, the Department explained that Ms. Doak’s inconsistent work schedule made it difficult
19
Ms. Doak includes her biweekly pay statements as an exhibit to her brief. See
Pl.’s Ex. 9, ECF No. 17-1. Without pointing to relevant pages or directing the Court to anything
in particular about these statements, it is difficult for the Court to decipher their purpose, or
whether they create any dispute of material fact as to her AWOL hours. The court need not
engage in a fishing expedition looking itself for a genuine issue of material fact. See Potter v.
District of Columbia, 558 F.3d 542, 553 (D.C. Cir. 2009) (Williams, J., concurring) (explaining
that Local Rule 7(h)’s requirement that an opposition to a summary judgment motion be
accompanied by a separate concise statement of genuine issues setting forth all material facts that
includes references to parts of the record relied on to support the statement “embodies the
thought that judges ‘are not like pigs, hunting for truffles buried in briefs’ or the record”)
(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). That being said, the Court
notes that the Department’s records regarding Ms. Doak’s time in AWOL status are corroborated
by Ms. Doak’s pay statements. For instance, in the pay period from May 9, 2010 to May 22,
2010, Ms. Doak’s pay statement reflects that she was in AWOL status for 8 hours on May 10,
May 11, and May 22, 2010.
Moreover, in her deposition, Ms. Doak repeatedly stated that the Department’s numbers
regarding her AWOL status were “inaccurate.” See Doak Dep. at 252‒253. However, Ms.
Doak’s pay statements generally reflect large periods of absences throughout 2010, and Ms.
Doak herself never performed an independent analysis to see if the Department’s numbers were
correct. See id. at 253:23‒24. Because the plaintiff has not pointed to anything on the record to
create a genuine issue of material fact, the Court considers the facts regarding her hours
undisputed.
25
to try to accommodate her. See Souther Dep. at 41 (“Based on the information I had . . . there
were days [Ms. Doak] didn’t come to work at all, there were days she came in at 2:00 or 2:30,
there were days she was in by 11:00, there were days she was in by 9:00 . . . .”); Pennington
Dep. at 17‒18 (“Ms. Doak had unpredictable episodes of pain that required medication that had
serious side effects, and because both the episodes were unpredictable and the side effects of the
medications were incapacitations, that a fixed work schedule was not possible because of the
unpredictability of her unstable medical condition.”); Pennington Mem., Def.’s Ex. 26, ECF No.
16-10 (“Dr. Berbano indicated that Ms. Doak has a condition that causes her to be ‘incapacitated
due to the pain.’ Additionally, the treatment for these incapacitating episodes completely
incapacitate[s] her. These medical episodes are unpredictable and unless they are stabilized Ms.
Doak will not be able to work a predictable work schedule.”). In the end, Ms. Doak’s requested
work accommodation was an unpredictable, flexible schedule that allowed her to come into work
whenever she could make it. This was unreasonable as a matter of law. See Solomon, 845 F.
Supp. 2d at 71‒73; Scarborough, 190 F. Supp. 2d at 25‒26. Making it to work regularly is an
essential function of the job that Ms. Doak could not muster even with the requested
accommodation. 20
20
Ms. Doak also argues that the Department failed to accommodate her because it
failed to take part in the interactive process. See Compl. ¶ 28. There is no independent cause of
action for failure to engage in the interactive process—under the ADA, and in turn, the
Rehabilitation Act, there is only a cause of action for failure to accommodate generally. See
McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 100‒01 (2d Cir. 2009) (“failure to
engage in an interactive process does not form the basis of an ADA [and in turn, a Rehabilitation
Act], claim in the absence of evidence that accommodation was possible”); Fjellestad v. Pizza
Hut of America, Inc., 188 F.3d 944, 951‒52 (8th Cir. 1999) (explaining that many circuits hold
that “an employer cannot be held independently liable under the ADA [and in turn, the
Rehabilitation Act], for simply failing to engage in an interactive process to determine
reasonable accommodations” and holding that “there is no per se liability under the ADA if an
employer fails to engage in an interactive process”). The analysis for the failure to accommodate
claim is set forth above.
26
Moreover, Ms. Doak’s physical presence was required at work, making telecommuting in
addition to, or instead of, a modified hourly schedule, an unreasonable accommodation. The
reasonable accommodation analysis established by Carr, Langon, and Breen and their progeny
turns, to a degree, on whether the plaintiff’s physical presence at work was an essential function
of her job. 21 Most recently, this Court has explained that “the few cases that touch on this
precise subject suggest that if the job in question requires that an employee be present—that is,
the employee can perform the essential function of her job only by being in the office—the
employer need not grant a telecommuting request.” See McNair, 2014 WL 242913, at *4. In
McNair, the court concluded that the employer did not need to provide the plaintiff’s
accommodations because the essential functions of her job could only be completed from her
employer’s physical headquarters. Id. at *5‒6.
In this case, the Department explained that Ms. Doak’s need to work with her team made
an adjusted work schedule or telework impracticable. Ms. Doak’s colleagues arrived at work
anytime between 6:00 a.m. and 8:00 a.m., see Souther Dep. at 28‒31, and conducted meetings, 22
21
While courts generally hold that regular work attendance is an essential function
of a job, see, e.g., Carr, 23 F.3d at 529 (explaining that “coming to work regularly” was an
essential function of the job); Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190, 200 (1st Cir.
2011) (“[a]t the risk of stating the obvious, attendance is an essential function of any job”
(citations omitted)); Rosell v. Kelliher, 468 F. Supp. 2d 39, 45‒46 (D.D.C. 2006) (“One of the
most fundamental requirements of any position is reporting for work.”), courts do not hold that,
as a matter of law, physical presence is required in order “to fulfill this essential function of
attendance.” Valle-Arce, 651 F.3d at 200; McMillan v. City of New York, 711 F.3d 120, 126‒27
(2d Cir. 2013) (“Physical presence at or by a specific time is not, as a matter of law, an essential
function of all employment.”). Rather, the analysis is whether the plaintiff’s physical presence
was required during specific business hours because of the nature of the position, and therefore
whether the plaintiff’s requested accommodation of flexible start times would have impaired an
essential function of the job. Id. at 127.
22
The record is unclear as to the exact start times of these meetings, but it is clear
they occurred in the morning. It appears that in May 2010, Ken King, a new manager took over
Ms. Doak’s division and implemented morning meeting times instead of afternoon meeting
times. See Doak Dep. at 143‒144, 238.
27
and had regular team interactions that required a physical presence in the building. Ms. Doak’s
job description included attending spontaneous meetings with program managers that “often
requires attendees to review the same documentation at the same time” and, as the Department
explained, having an off-site employee look at that document “compromise[d] the efficiency
with which this work can be performed.” See Def.’s Resp. to Interrogatory 3, Def.’s Resp. to
Interrogatory 5, ECF No. 16-1. The Department also explained that the USCG Acquisitions
Program often worked on short deadlines and the “pace of work / operations can sometimes be
too fast for anything other than on-site presence.” Def.’s Resp. to Interrogatory 5. In addition,
the Coast Guard’s Acquisition Directorate explained that “[w]ork must be performed between
the hours of 0600-0800, with all CG-9 employees/members present during the core hours of
0930-1030 and 1330-1430.” Def.’s Ex. 7 ¶ 7(a)(1). Ms. Doak’s late arrival substantially
diminished the amount of time she would be able to partake in these daily, much-needed
interactions with her teammates, and prevented her from being present during core hours. For
instance, if she arrived at 11:00 a.m., she would have anywhere between three and five fewer
hours per day to interact with her colleagues on projects—her colleagues who arrived to work at
6:00 a.m. would be gone by 2:30 p.m. or 3:30 p.m. (depending on whether they were on a nine-
hour or eight-hour shift, with thirty minutes for lunch). See Souther Dep. at 29; see also Def.’s
Statement Undisputed Facts ¶ 43; Def.’s Ex. 19 ¶ 4 (explaining that “you will not be able to meet
those obligations [of interacting daily and frequently with the project staff] with a work schedule
that does not have you arrive until 1100 daily and therefore would place the project and resource
office in a hardship position by requiring personnel from other projects to attend these meetings
on the behalf of the resource office.”). Thus, Ms. Doak’s request for telecommuting was not a
28
reasonable request because her physical presence at the office was required for more than the
few hours per day, if at all, that she was making it in.
Even if Ms. Doak’s physical presence at work was not required, however, Ms. Doak was
still not able to telework effectively because her disability incapacitated her regardless of where
she was, and thus she could not perform the essential function of her job even with an
accommodation. Even if she had been granted the accommodation of teleworking or weekend
hours, she still would not have been able to perform any work if a migraine struck. See, e.g.,
Def.’s Ex. 25, Dr. Berbano Mem. (“Ms. Doak suffers from periodic migraines. When she
experiences acute onset of a migraine, she is incapacitated due to the pain and cannot concentrate
on the tasks at hand, whether at her job or at home performing routine activities of daily living . .
. .”) (emphasis added); Doak Dep. at 145:3-14 (explaining that she would “likely not” be able to
work either at home or at the office when she was suffering from a migraine) (emphasis added).
Thus, whether she was working in the office or from home, she still required a “work when I
can” schedule that is unreasonable as a matter of law. 23
In sum, the Department implemented all the reasonable office accommodations Ms. Doak
requested because of her disability, and only denied Ms. Doak’s requests for telework and a
modified schedule because they were unreasonable as a matter of law. The Department therefore
reasonably accommodated Ms. Doak and did not discriminate against her on the basis of her
disability.
23
Importantly, Ms. Doak’s unpredictable incapacitation was not limited to the
morning. For instance, when Ms. Doak attended an office holiday party on December 18, 2009,
she arrived to the party around 2:00 p.m. (after calling in sick that day). See Def.’s Ex. 20, Resp.
to Interrogatory No. 21, ECF No. 14-16. Forty-five minutes after she arrived, her migraine
returned and she had to take a nap, which she did in “the Chiefs’ Mess” until 8:00 p.m. Id.29
D. Retaliation
Ms. Doak’s final claim is that the Department retaliated against her by deciding to
terminate her in response to her request for reasonable accommodations. See Compl. ¶ 30. The
ADA, and in turn, the Rehabilitation Act, also contains an anti-retaliation provision. See
Mogenhan, 613 F.3d at 1165 (quoting 29 U.S.C. § 794(d)). The elements of retaliation and
discrimination claims are the same under Title VII and the Rehabilitation Act. Id.; see also
Munro v. LaHood, 839 F. Supp. 2d 354, 360 (D.D.C. 2012). As such, retaliation claims are also
governed by the McDonnell Douglas burden-shifting framework. Jones v. Bernanke, 557 F.3d
670, 677 (D.C. Cir. 2009). To establish a prima facie case of retaliation, which is the first step in
the burden-shifting analysis, the plaintiff must show “(1) that [s]he engaged in [a] statutorily
protected activity; (2) that [s]he suffered a materially adverse action by h[er] employer; and (3)
that a causal link connects the two.” Id.; see also Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir.
2009). Though discrimination and retaliation claims are similarly analyzed, the D.C. Circuit has
explained one difference in the elements: that “‘[a]dverse actions’ in the retaliation context
encompass a broader sweep of actions than those in a pure discrimination claim.” Baloch v.
Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2009). This is because, “[r]etaliation claims are
‘not limited to discriminatory actions that affect the terms and conditions of employment’ and
may extend to harms that are not workplace-related or employment-related so long as ‘a
reasonable employee would have found the challenged action materially adverse.’” Id. (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68 (2006)). The D.C. Circuit has
since elaborated that “materially adverse action” in the retaliation context “means [that] it well
might have dissuaded a reasonable worker from making or supporting a charge of
30
discrimination.” Mogenhan, 613 F.3d at 1166 (quoting Burlington N., 548 U.S. at 68); accord
Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010).
“[Once] the plaintiff establishes a prima facie case, the burden shifts to the employer to
produce a legitimate, nondiscriminatory reason for its actions.” Jones, 557 F.3d at 677 (internal
quotation marks and citation omitted). “If the employer does so, the burden-shifting framework
disappears, and a court . . . looks to whether a reasonable jury could infer . . . retaliation from all
the evidence, which includes not only the prima facie case but also the evidence the plaintiff
offers to attack the employer’s proffered explanation for its action and other evidence of
retaliation.” Id. (internal quotation marks omitted).
Ms. Doak argues that she has established a prima facie case of retaliation because she
“participated in protected activity by requesting accommodations,” “suffered an adverse action
when she was forced to resign,” and “there is a causal link between [her] requests for
accommodations from April 16, 2010 through July 16, 2010” and the Department’s first step in
removing her in its proposed removal notice of August 9, 2010. See Pl.’s Opp’n Mot. 14. “A
plaintiff may satisfy [the causal link] . . . element of a prima facie case by showing ‘the employer
had knowledge of the employee’s protected activity, and . . . the adverse personnel action took
place shortly after that activity.’” Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006)
(quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985)). The Court need not decide
whether there is sufficient temporal proximity here, 24 because once the employer proffers a
24
The D.C. Circuit has required “‘positive evidence beyond mere proximity . . . to
defeat the presumption that the [employer’s] proffered explanations are genuine.’” Talavera v.
Shah, 638 F.3d 303, 313 (D.C. Cir. 2011) (quoting Woodruff v. Peters, 482 F.3d 521, 530 (D.C.
Cir. 2007)). See also Woodruff, 482 F.3d at 530 (“If temporal proximity sufficed to rebut a
legitimate proffer, then protected activities would effectively grant employees a period of
immunity, during which no act, however egregious, would support summary judgment for the
employer in a subsequent retaliation claim.”).
31
legitimate non-discriminatory reason for the adverse employment action, the prima facie case
drops out and the ultimate issue is “whether a reasonable jury could infer retaliation from all the
evidence.” Jones, 557 F.3d at 677.
As set forth above, the Department’s decision to remove Ms. Doak was due to her
repeated absences, her failure to comply with leave procedures, and the effect of both on her
team at the Coast Guard. Ms. Doak has not provided any evidence that this reason was
pretextual and that the real reason for terminating her was retaliatory. Based on the fact that Ms.
Doak missed nearly 50 percent of her work hours in 2010, no reasonable jury could conclude
that chronic absenteeism and tardiness was not the real reason for Ms. Doak’s termination and
instead, that retaliatory animus was behind the Department’s decision to terminate Ms. Doak’s
employment. As such, the Court must enter judgment for the Department on this claim.
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion is GRANTED. An order consistent
with this Memorandum Opinion is separately and contemporaneously issued.
Dated: February 10, 2014 RUDOLPH CONTRERAS
United States District Judge
32