Bonnette v. Shinseki

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
CATHRYN BONNETTE, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-2110 (ABJ)
)
ERIC K. SHINSEKI, Secretary, )
Department of Veterans Affairs, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Cathryn Bonnette brings this action against defendant Eric K. Shinseki,
Secretary of the U.S. Department of Veterans Affairs (“VA”), alleging that she was
discriminated against on the basis of her disability (Count I) and retaliated against after she filed
EEO complaints against her employer (Count II). Bonnette, who is blind, also charges in Count
I that the agency failed to reasonably accommodate her disability.
The complaint purports to bring both counts under the Americans with Disability Act of
1990, 42 U.S.C. § 12101, et seq. (2006) (“ADA”). See Compl. [Dkt. # 1] ¶¶ 110–13 (First cause
of action: disability discrimination and failure to accommodate); id. ¶ 119 (Second cause of
action: “Defendant’s actions constituted a violation of retaliation under the ADA.”). But the
“ADA does not apply to employees of the federal government because the federal government is
not considered an ‘employer’ under the ADA.” Klute v. Shinseki, 797 F. Supp. 2d 12, 17
(D.D.C. 2011); see also 42 U.S.C. § 12111(5)(B)(i) (specifically excluding “the United States”
from the definition of “employer”). To protect federal workers, Congress incorporated the
ADA’s anti-discrimination and anti-retaliation provisions into the Rehabilitation Act of 1973, 29
U.S.C. § 791, et seq. (2006) (“Rehabilitation Act”). See Woodruff v. Peters, 482 F.3d 521, 526
(D.C. Cir. 2007); see also 29 U.S.C. § 791(g); 42 U.S.C. § 12112(a); Marshall v. Potter, 634 F.
Supp. 2d 66, 73 (D.D.C. 2009), citing 29 U.S.C. § 794(d). Because the Rehabilitation Act
incorporates the ADA, it is “the exclusive remedy for employment discrimination based on a
disability for federal employees.” Raines v. DOJ, 424 F. Supp. 2d 60, 64 (D.D.C. 2006) (internal
citations and quotation marks omitted). Therefore, as both parties have done in their briefing, the
Court will assess Bonnette’s claims that she was discriminated and retaliated against on the basis
of her disability as if they had been brought under the Rehabilitation Act. See, e.g., Def.’s Mem.
in Supp. of Mot. for Summ. J. [Dkt. # 20] (“Def.’s Mem.”) at 5–8; Pl.’s Mem. in Opp. to Def.’s
Mot. for Summ. J. [Dkt. # 24] (“Pl.’s Opp.”) at 7–9.1
In her complaint, Bonnette recites a series of factual allegations that range from petty
slights – the disparagement of Bonnette’s Christmas tree – to significant adverse events,
including her termination from the agency, and she premises both causes of action on those facts.
The VA seeks judgment on the pleadings, or, in the alternative, summary judgment on all counts.
Def.’s Mot. for J. on the Pldgs or, in the alternative, for Summ. J. [Dkt. # 20] (“Def.’s Mot.”).
1 In their briefs, both parties have analyzed Bonnette’s claims as if they arose under both
the Rehabilitation Act and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
(“Title VII”). But the complaint does not mention Title VII, nor does it allege any form of
discrimination other than mistreatment of the plaintiff based on her disability. Indeed, it does not
even specify her race, religion, or national origin. It is true that the second cause of action
alleges that the defendant took the actions challenged in this case “because of Plaintiff’s EEO
complaints,” Compl. ¶ 122, and those filings, unlike the instant lawsuit, complained of
discrimination based upon plaintiff’s age as well as her disability, but age discrimination would
be actionable under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a, et.
seq. (“ADEA”), not Title VII. Thus, the Court will consider the complaint as if it had been filed
under the Rehabilitation Act alone, but it notes that the result in this case would be the same
under either framework. Ultimately, Title VII factors into the legal analysis anyway because
section 501 of the Rehabilitation Act incorporates section 107 of the ADA, which in turn
incorporates the remedies and procedures established in Title VII. See Woodruff, 482 F.3d at
526; 42 U.S.C. § 12117(a).
2
The VA contends that many of the actions that Bonnette characterizes as discriminatory and/or
retaliatory do not constitute actionable adverse employment actions within the meaning of the
Rehabilitation Act, and that any adverse employment actions that were taken can be explained by
legitimate, nondiscriminatory, and non-retaliatory reasons. Def.’s Mem. at 21–41. It further
argues that the agency provided Bonnette with the reasonable accommodations that she required,
id. at 14–21, and that the circumstances presented in the complaint do not rise to the level of
severity necessary to make out a hostile work environment claim, id. at 41–43.2 While the Court
does not wish to minimize the substantial obstacles that Bonnette was required to overcome in
her efforts to meet the demands of her job without the benefit of sight, it concludes that the
undisputed facts support the VA’s contentions, and it will grant motion for summary judgment
on all counts.
BACKGROUND
The complaint sets out the fact that plaintiff Cathryn Bonnette is “totally blind” and thus
disabled. Compl. ¶ 22. In March 2007, the VA hired her under Schedule A, a special hiring
authority for individuals with targeted disabilities, subject to a two-year probationary period.
EEO Affidavit of Ralph Torres (July 7, 2009), Ex. 4 to Def.’s Mot. (“Torres EEO Aff.”) at 348.
After the two-year probationary period, the VA could decide to retain Bonnette or terminate her
employment with the agency. SF-50 Excepted Appointment, Ex. 7 to Def.’s Mot.; Tracey Therit
Deposition (Oct. 26, 2011), Ex. 6 to Def.’s Mot. (“Therit Dep.”) at 13:16–14:1, 16:4–12.
Bonnette was terminated at the conclusion of the two years, Nonconversion of Schedule A
Appointment, Ex. 16 to Def.’s Mot. (“Nonconversion Notice”), but she was reinstated shortly
2 The words “hostile work environment” cannot be found anywhere in the complaint
either, but the Court will construe Bonnette’s claims broadly to include that form of
discrimination and retaliation since in her opposition, Bonnette accepted the VA’s invitation to
read that allegation into the cause of action, and both parties have briefed the issue.
3
thereafter for another period that also eventually concluded with her termination, Bonnette
Deposition (Aug. 11, 2011), Ex. 1 to Def.’s Mot. (“Bonnette Dep.”) at 76:14–19, 176:4–6.
Bonnette ascribes these actions to discrimination and retaliation, and she alleges that the agency
did not make the reasonable efforts necessary to accommodate her disability and enable her to
succeed. While the complaint does not always include the dates that could serve as helpful
signposts, it appears that the general chronology of events is as follows:
I. Two Year Probationary Period: March 2007 to February 2009
During her tenure with the agency, Bonnette served as an ADR program specialist in the
VA’s Office of Resolution Management (“ORM”). SF-50 Excepted Appointment, Ex. 7 to
Def.’s Mot. ORM does not mediate disputes itself, but it arranges for mediations to take place
by performing such tasks as scheduling. Therit EEO Affidavit (June 30, 2009), Ex. 3 to Def.’s
Mot. (“Therit EEO Aff.”) at 297–98; Def.’s St. of Material Facts as to Which there is no Genuine
4
Dispute [Dkt. # 20–1] (“Def.’s St. Facts”) ¶ 5.3 Bonnette was responsible for working with other
ADR groups, producing materials that promoted the use of ADR services, managing the drafting
of a VA-wide handbook for certification of ADR neutrals, and coordinating teleconferences for
VA certified mediators. Position Descriptions, Exs. 9–10 to Def.’s Mot.; Bonnette Dep. at 58:8–
59:1, 64:6–8. Specifically, she was responsible for arranging and identifying topics and speakers
for monthly teleconferences for the mediators. Therit Dep. at 151:14–19.
Rafael Torres, the Deputy Assistant Secretary for Resolution, who served as Bonnette’s
immediate supervisor from March 2007 to May 2008, rated Bonnette’s performance as “fully
successful” during that period. Bonnette Performance Appraisals, Ex. 23 to Def.’s Mot. at 408-
13. Based on that rating, Bonnette was promoted from GS-11 to GS-12 in March 2008, and she
continued to serve as an ADR program specialist. Bonnette Dep. at 52:16–17. In May 2008,
Tracey Therit, the ADR Director, became Bonnette’s immediate supervisor. Id. at 93:8–10;
3 Local Rule of Civil Procedure 7(h)(1) requires a party opposing a motion for summary
judgment to file
a separate concise statement of genuine issues setting forth all material
facts as to which it is contended there exists a genuine issue necessary to
be litigated, which shall include references to the parts of the record relied
on to support the statement . . . . In determining a motion for summary
judgment, the court may assume that facts identified by the moving party
in its statement of material facts are admitted, unless such a fact is
controverted in the statement of genuine issues filed in opposition to the
motion.
LCvR 7(h)(1). As the VA contends, if a party opposing the motion fails to comply with this rule,
then “‘the district court is under no obligation to sift through the record and should [i]nstead . . .
deem as admitted the moving party’s facts that are uncontroverted by the nonmoving party’s
Rule [LCvR 7(h)(1)] statement.’” SEC v. Banner Fund Int’l, 211 F.3d 602, 616 (D.C. Cir.
2000), quoting Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145,
154 (D.C. Cir. 1996). Although Bonnette filed a statement pursuant to Rule 7(h)(1), for several
paragraphs, she did not cite to specific parts of the record controverting the VA’s statement of
undisputed facts as required by the local rules. So the Court will deem those paragraphs to be
admitted. See id. (holding that the district court was “fully justified” in treating the moving
party’s statement of material facts as admitted where the non-moving party did not provide
citations disputing the moving party’s “lengthy statement of undisputed facts”).
5
Therit Dep. at 10:14–16. The record indicates that this did not turn out to be a successful pairing
for Bonnette.
Initially, Bonnette requested reassignment to a different supervisor and asked to become
an EEO counselor. Bonnette Dep. at 119:16–21; Def. St. Facts ¶ 41. The VA has stated that it
denied this request because Bonnette was not qualified for the EEO counselor position. Def.’s
St. Facts ¶¶ 42–45. Based in part on input from Torres, Therit rated Bonnette as “fully
successful” again in September 2008. Bonnette Performance Appraisals, Ex. 23 to Def.’s Mot.
at 414–22. But during this evaluation, Therit also informed Bonnette of areas in which her
performance needed improvement. Therit EEO Aff. at 316.
On December 10 and 11, 2008, Therit contacted Human Resources about whether the VA
should retain Bonnette after her probationary period. Ex. 27 to Def.’s Mot. A few days later, in
a December 16, 2008 email, Therit informed Bonnette of specific deficiencies in her
performance and stated that Bonnette might not be retained after the probationary period. Ex. 28
to Def.’s Mot. In the email, Therit also asked Bonnette to complete a series of tasks by the end
of the month. Id. According to the VA, Bonnette failed to accomplish a number of them,
including coordinating central office ADR awareness training, coordinating mediator
teleconferences on a quarterly basis, updating the agency’s website, and revising a document on
tips for preparing settlement agreements. Therit EEO Aff. at 317.
Bonnette admits that she failed to update the ADR website in December 2008, failed to
draft a document containing tips for settlement agreements, missed other deadlines, and made
typographical errors. See Bonnette Dep. at 142:20–23, 144:19–145:21. However, she asserts
that Therit prevented her from accomplishing these tasks by refusing to provide the necessary
approvals. Id. at 140:25–141:11.
6
In January 2009, Bonnette contacted an EEO counselor, and she ultimately alleged
sixteen acts of discrimination based on her disability and age. Bonnette 2009 EEO Claims, Ex.
21 to Def.’s Mot. She did not allege retaliation at that time. Id.; Def.’s St. Facts ¶ 81. In
February 2009, the VA decided to not retain Bonnette after her two-year probationary period.
See generally Nonconversion Notice. It placed her on paid administrative leave for two weeks
until her February 27, 2009 termination date. Pl.’s Opp. at 2. In addition to a number of alleged
general performance deficiencies, the VA identified the following reasons for Bonnette’s
termination in the Nonconversion Notice:
A. Disclosure of Confidential Information
In February 2008, while scheduling a mediation, Bonnette failed to edit two attachments
and disclosed the case number and names of other VA employees who previously participated in
the mediation. Nonconversion Notice at 2. Therit advised Bonnette of her error, reported the
privacy violation to the ORM Privacy Officer, and asked Bonnette to contact all recipients and
ensure they deleted the attachments. Id. Therit also asked to review such emails in the future
before Bonnette sent them and Bonnette completed General Privacy Awareness Training at that
time. Id.On December 5, 2008, while scheduling another mediation, Bonnette emailed party
information to a group of thirty-one qualified VA mediators. Id. Therit informed Bonnette that
party information should only go to the VA employee who actually volunteers to mediate a case
and not to all VA mediators. Id. Bonnette stated that she would follow this procedure in the
future. Id. Again, on December 9, 2008, Bonnette sent information regarding another VA
employee’s mediation while scheduling a mediation session. Id. Bonnette stated that she did not
know that information from another case was at the beginning of the email string and Therit
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discussed various procedures that would help avoid this error in the future. Id. Therit reported
the third privacy violation to the ORM Privacy Officer and instructed Bonnette to take steps to
remedy the situation. Therit EEO Aff. at 329. In response to Therit’s inquiry as to why
Bonnette did not ask her to review the email before she sent it, Bonnette stated that she did not
have time. Id.B. Improper Use of a Government Travel Card
Bonnette held a government travel card at least until she was terminated in February
2009. Def.’s St. Facts ¶ 52, accord Pl.’s St. of Material Facts in Dispute [Dkt. # 25–1] (“Pl.’s St.
Facts”) ¶ 49. In April 2008, she received ORM’s Government Travel Credit Policy, which states
that the government issued card should only be used on official travel. Therit EEO Aff. at 311.
But Bonnette used her government travel card at a working lunch in the District of Columbia in
August 2008. Bonnette Dep. at 134:14–135:4. She explains that she accidentally used the
government card because she could not distinguish between her personal credit card and the
government issued card. Id. Moreover, she avers that she was confused about the appropriate
use of the card because the credit card policy was difficult to navigate using the Job Access With
Speech (JAWS) technology installed on her computer to accommodate her disability. Id.Bonnette was admonished on August 29, 2008 for the unauthorized use of the credit card in
violation of VA Directive 0631.1. Id. at 136:21–137:17; Def.’s St. Facts ¶ 49.
C. Failure to Attend Mandatory Training
On December 10 and 11, 2008, Bonnette was scheduled to attend mandatory Crucial
Conversations training. Bonnette Dep. at 164:18–25. The training conflicted with holiday
caroling and an open house that Bonnette wanted to attend. Id. She tried to exchange training
dates with another employee but was unsuccessful. Id. at 165:2–5. Nonetheless, Bonnette
8
skipped the training on the morning of December 11 in order to attend the caroling and holiday
open house, and she sent her reader/sighted assistant in her stead. Id. at 166:17–167:13. She
asserts that she only missed two hours of the training and that her prior supervisor, Torres, and
the trainer gave her permission to miss the training session. Pl.’s St. Facts ¶ 53. The VA
disputes that assertion, noting that Bonnette simply informed the trainer that she would miss part
of the training because of a Christmas party. Letter of Reprimand (Jan. 30, 2009), Ex. 15 to
Def.’s Mot. (“Reprimand Letter”) at 2. Additionally, Torres has very limited recollection of this
event and does not remember giving Bonnette permission to skip the training. See Torres EEO
Aff. at 369. Therit discovered Bonnette’s absence on December 30, 2008 and reprimanded her
on January 30, 2009 for “her unauthorized absence from the training and for inappropriate use of
the reader/sighted assistant services.” See Reprimand Letter; see also Def.’ St. Facts ¶ 53.
II. Reinstatement: March 2009 to March 2010
On March 17, 2009, the VA reinstated Bonnette to her former position and placed her
under Therit’s continued supervision. Therit EEO Aff. at 326–27. Bonnette had ninety days to
demonstrate successful performance. Therit Dep. at 150:9–11. As part of the reinstatement,
Bonnette developed a return to work plan which required her to draft timelines for her
assignments. Id. at 124:11–15. Pursuant to the plan, she was not allowed to begin work on a
project until a completed timeline was submitted to Therit and approved. Id. at 144:2–6. There
were other VA employees at the time who were also required to use timelines if they were
working on certain projects. Id. at 127:5–128:12. Therit and Bonnette also created a joint
performance plan that included timelines for Bonnette’s accomplishment of specified
employment goals. Id. at 135:16–137:4.
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But Bonnette’s second stint at the VA did not go well either, and she complains here
about a series of discomfiting circumstances. She alleges that when she returned to the agency in
March of 2009, the files and folders saved on her computer had been renamed and scattered so
that she could not find them. Compl. ¶ 101. Rosa Franco, Associate Deputy Secretary for
Dispute Resolution Management and Therit’s immediate supervisor, asked Bonnette to
document the problems, and she assigned Glenn Thomas, ORM Information Technology
Program Manager to help resolve them. Def.’s St. Facts ¶ 69, accord Pl.’s St. Facts ¶ 69.
Bonnette also alleges that after she returned in March 2009, it took two weeks to obtain the data
watch card she needed to access locked areas, and therefore, she had to request a security escort
each time she used the restroom. Def.’s St. Facts ¶ 70, accord Pl.’s St. Facts ¶ 70. Bonnette
initially obtained a card from the building engineer, but Therit required her to return it and
request another from the Program Support Assistant who tracked the cards by card number and
reported any problems to the card provider. Id. No ORM employee was permitted to receive a
data card from the building engineer. Id.Upon her reinstatement, Bonnette was assigned a new sighted reader, Adrienne Leal.
Bonnette did not approve of Leal, and she stated that Leal read in a “stilted manner”,
paraphrased, subvocalized, and wore irritating perfume. Def.’s St. Facts ¶ 31; Pl.’s Opp. at 19.
Therit accepted Bonnette’s feedback and worked with Leal to resolve these issues. Email
Correspondence Between Therit and Bonnette (Apr. 30–May 4, 2009), Ex. 15 to Pl.’s Opp.
Another blind employee used Leal’s services and made no complaint about the quality of her
performance. Defendant’s Answers to Plaintiff’s Interrogatories, Ex. 11 to Def.’s Mot. at 19.
But Bonnette remained unsatisfied and continued to request a new sighted reader. Pl.’s Opp. at
18–20.
10
On June 15, 2009, Bonnette sent an email to Therit expressing her dissatisfaction with
Leal and with Therit’s alleged interference with attempts to train her: “Tracy . . . My response to
your message is that I am researching my options for supervision of the reasonable
accommodation of a reader/sighted assistant. My understanding is that it is an EEO Violation to
be deprived of the ability to provide supervision and direction to my reader/sighted assistant . . .
.” Ex. 7 to Pl.’s Opp. The VA did not replace Leal but she left voluntarily in December 2009.
Therit Dep. at 67:2–15.
On July 24, 2009, the VA placed Bonnette on a Performance Improvement Plan (“PIP”).
Ex. 17 to Def.’s Mot. The PIP memorandum stated that Bonnette’s performance was “less than
fully successful” between April and July 2009. Id. When the PIP concluded in November 2009,
Therit reported that Bonnette was not performing at a fully successful level and determined that
the VA should not retain her. Letter from Therit to Bonnette (Nov. 16, 2009), Ex. 18 to Def.’s
Mot. The VA terminated Bonnette effective March 22, 2010. Proposed Removal Letter (Mar.
22, 2010), Ex. 19 to Def.’s Mot.
When Bonnette left the VA, Therit submitted Bonnette’s employment badge to the
badging office. Therit Dep. at 197:8–12. The Deputy Assistant Secretary for Security and Law
Enforcement issued a security alert warning barring Bonnette’s admission to the building. Alert
Notice (Mar. 22, 2010), Ex. 20 to Def.’s Mot. Bonnette asserts that Therit was behind the
issuance of this alert, Pl.’s Opp. at 23, but the VA denies Therit’s involvement, Def. St. Facts ¶
79. Bonnette filed her second EEO complaint on June 9, 2010, asserting that she was terminated
based on retaliation, disability, and age. 2010 Notice of Accepted Claims (Jan. 4, 2011), Ex. 22
to Def.’s Mot.
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III. Accommodations of Bonnette’s Disability
In her first cause of action, Bonnette alleges that she requested such accommodations as a
seeing eye dog, an “appropriate reader,” the JAWS computer software, and “all other scanning
and adaptive equipment,” and that the VA failed to reasonably accommodate her. Compl. ¶¶
112–13. She raises concerns about how the agency handled her use of the bathrooms and its
attitude towards her service animal. Id. ¶¶ 90, 112. But the VA has come forth with evidence to
show that it provided assistive technology and sighted readers, and it made the arrangements
necessary to enable Bonnette to be accompanied by her service dog. Def.’s St. Facts ¶¶ 21–39.
The assistive technology included the JAWS text-to-speak software; a Criswell scanner, which
converts files into accessible documents; a PAC mate for note taking; and a hand cassette for
audio recording. Id. ¶ 22.
There were three restrooms available for the people who worked in Bonnette’s office
suite: a men’s room, a ladies’ room, and an executive unisex restroom, which was originally
reserved for the individual serving in Mr. Torres’s supervisory position. Therit EEO Aff. at 295.
Bonnette complains that the VA instructed her to not use the ladies’ room and instead required
her to use the unisex restroom. Pl.’s St. Facts ¶ 23. The VA explains that Bonnette was
provided with a key to the executive restroom because she navigated the building with her dog,
and some female employees were allergic to dog hair. Def.’s St. Facts ¶ 23; Therit EEO Aff. at
295.
To make it possible for Bonnette to be assisted by her dog in an office with colleagues
with allergies, the VA arranged for frequent vacuuming, and it paid $800 for a special air filter to
remove the dog’s dander. Torres EEO Aff. at 349. In addition, it allowed Bonnette to provide
training to other employees on working with people with visual disabilities and their service
12
animals, and it took steps to address Bonnette’s complaints of mistreatment from her co-workers
about her service dog. Def.’s St. Facts ¶¶ 35–38, accord Pl.’s St. Facts ¶¶ 35–38. On one
occasion, Therit allegedly asked Bonnette to take the dog farther away from the building to a
highly trafficked area so that the dog could relieve itself. Pl.’s Opp. at 20–21. Bonnette felt that
this request was unreasonably dangerous due to her disability. Id.
When Bonnette began work at the VA, she did not want a sighted reader, but eventually
she requested one. Def.’s St. of Facts ¶ 24. The VA provided her with a reader in August 2007
when she travelled for work purposes, and it eventually hired a full-time reader for her. Id.
Bonnette was involved in the hiring process for readers: she reviewed their resumes and
participated in their interviews. Id. ¶ 26. She also worked with Therit to create a list of the
sighted readers’ duties and participated in their training. Therit Dep. at 106:1–107:19; see also
Def. St. Facts ¶¶ 27–28. Therit estimates that Bonnette had five to ten readers over the course of
her employment, including Adrienne Leal. Therit Dep. at 33:18–34:18. After Leal’s departure,
Bonnette worked with Cassandra Harmon and was satisfied with her performance. Pl.’s Opp. at
20.
IV. Remaining Allegations
Bonnette also alleges in her complaint that the VA failed to pay her for the overtime that
she worked. Compl. ¶ 26. In response, the VA states that overtime requires advanced approval
and that Bonnette never obtained such approval. Def.’s St. Facts ¶ 20.
Bonnette asserts that Therit “nitpicked” her work and caused her to miss deadlines by
refusing to provide the necessary approvals for her projects in a timely manner. Pl.’s Opp. at 14.
The VA responds that Therit always paid great attention to detail, even to the point of pointing
out the grammatical and stylistic mistakes in Bonnette’s employment application. Def.’s St.
13
Facts ¶¶ 9, 18–19. It further asserts that this attention to detail did not cause Bonnette to miss her
deadlines. Def.’s Reply in Supp. of Def.’s Mot. for J. on the Pldgs, or in the alternative for Mot.
for Summ. J. [Dkt. # 28] (“Def.’s Reply”) at 12–13.
Finally, Bonnette alleges that Therit ridiculed a Christmas tree in her office in December
2008, Compl. ¶ 74, reduced her job responsibilities, id. ¶¶ 78, 98–99, publicly embarrassed and
humiliated her, id. ¶¶ 46, 89, 100, gave her short deadlines, id. ¶ 97, unjustifiably reprimanded
her, id. ¶¶ 81–82, delayed her departure from work, id. ¶ 53, and isolated her from her co-
workers, id. ¶ 94. Defendant denies these allegations. Def.’s Mem. at 21–43.
STANDARDS OF REVIEW
I. Judgment on the Pleadings
A motion for judgment on the pleadings pursuant to Rule 12(c) may be granted “only if it
is clear that no relief could be granted under any set of facts that could be proved consistent with
the allegations.” Longwood Vill. Rest., Ltd. v. Ashcroft, 157 F. Supp. 2d 61, 66 (D.D.C. 2001),
citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Put another way, “[i]f there are
allegations in the complaint which, if proved, would provide a basis for recovery, the Court
cannot grant judgment on the pleadings.” Nat’l Shopmen Pension Fund v. Disa, 583 F. Supp. 2d
95, 99 (D.D.C. 2008) (citations and quotation marks omitted).
“The standard of review for such a motion is essentially the same as the standard for a
motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6).” Longwood,
157 F. Supp. 2d at 66–67. “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations
omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme
14
Court reiterated the two principles underlying its decision in Twombly: “First, the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” 556 U.S. at 678. And “[s]econd, only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at 679.
A claim is facially plausible when the pleaded factual content “allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” id.,quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice,” id. In evaluating a motion for
judgment on the pleadings under Rule 12(c), the court may consider facts alleged in the
complaint as well as documents attached to or incorporated by reference in the complaint. Qi v.
FDIC, 755 F. Supp. 2d 195, 199–200 (D.D.C. 2010).
II. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing there is a
15
genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the
non-moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).
In assessing a party’s motion, “[a]ll underlying facts and inferences are analyzed in the
light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F.
Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247. The non-movant may not,
however, rest upon the mere allegations or denials of its pleadings, but must instead establish
more than “[t]he mere existence of a scintilla of evidence” in support of its position. Anderson,
477 U.S. at 252. The court will “not accept bare conclusory allegations as fact.” Taylor v.
FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997); see also District Intown Props., Ltd. P’ship v.
District of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999) (“[T]he court must assume the truth of
all statements proffered by the non-movant except for conclusory allegations lacking any factual
basis in the record.”).
A motion for judgment on the pleadings must be treated as a motion for summary
judgment if “matters outside the pleadings are presented to and not excluded by the court.” Fed.
R. Civ. P. 12(d); see also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003)
(holding that district court’s consideration of matters outside the pleadings converted the
defendant’s Rule 12 motion into one for summary judgment). Because both parties have
submitted matters outside of the pleadings, and the Court will consider them in the resolution of
at least some issues presented by this motion, the Court will treat it as one for summary
judgment.
16
ANALYSIS
Bonnette asserts that the VA discriminated against her because of her disability, retaliated
against her because of her EEO complaints, failed to reasonably accommodate her disability, and
subjected her to a hostile work environment, all in violation of the Rehabilitation Act. Pl.’s Opp.
at 5, 21. The VA seeks dismissal of Bonnette’s claims under Rule 12(c) or alternatively, Rule
56, on the grounds that Bonnette failed to establish a prima facie case for her claims and/or failed
rebut the VA’s legitimate, nondiscriminatory, and non-retaliatory reasons for the challenged
actions. Def.’s Mem. at 8–43.4
I. Discrimination and Retaliation Claims
A. Legal Standard
Allegations of discrimination and retaliation under the Rehabilitation Act are analyzed
under the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Woodruff, 482 F.3d at 528–29; Kersey v. Wash. Metro. Area Transit Auth.,
586 F.3d 13, 16 (D.C. Cir. 2009). Under this framework, the plaintiff has the initial burden of
establishing a prima facie case by a preponderance of the evidence. 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). To
prove discrimination in the absence of direct evidence of discrimination, plaintiff must
demonstrate that: “(1) she is a member of a protected class; (2) she suffered an adverse
employment action; and (3) the unfavorable action gives rise to an inference of discrimination.”
4 In its answer to Bonnette’s complaint, the VA also argues that Bonnette failed to exhaust
administrative remedies with respect to three of her claims: the allegations regarding the
disclosure of Bonnette’s disability to others without her permission, Compl. ¶ 43; an oral
reprimand for walking to work with co-workers, id. ¶ 81; the denial of the opportunity to mediate
disputes, id. ¶ 82; and the denial of a business credit card, id. ¶ 87. Ans. [Dkt. # 4] ¶¶ 43, 81, 82,
87. The record seems to support this affirmative defense but since the VA did not expressly
move to dismiss these claims on those grounds and give Bonnette the opportunity to respond,
that defense is not the basis for the Court’s decision.
17
Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006). To establish a prima facie case
of retaliation, the plaintiff must show: “(1) that [s]he engaged in statutorily protected activity;
(2) that [s]he suffered a materially adverse action by [her] employer; and (3) that a causal link
connects the two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009); see also Taylor v.
Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009); Rochon v. Gonzales, 438 F.3d 1211, 1219–20 (D.C.
Cir. 2006).5
If 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 citations omitted). If the employer offers a legitimate explanation for its
decision, “to survive summary judgment the plaintiff must show that a reasonable jury could
conclude from all of the evidence that the adverse employment decision was made for a
discriminatory [or retaliatory] reason.” Kersey, 586 F.3d at 17 (internal citations and alterations
omitted); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983).
The VA does not contest that Bonnette is a member of a protected class, or that her EEO
complaints constituted statutorily protected activity. See generally Def.’s Mem. It asserts,
however, that a number of the incidents recounted in the complaint were not “adverse” and that
for the few alleged employment decisions that satisfy that element, Bonnette has failed to rebut
the VA’s legitimate, non-retaliatory, and nondiscriminatory explanations. The Court agrees with
both points, and will dismiss Bonnette’s retaliation and discrimination claims under Rule 56.
5 The elements of retaliation and discrimination claims are the same under Title VII and
the Rehabilitation Act. Mogenhan v. Napolitano, 613 F.3d 1162, 1165 (D.C. Cir. 2010)
(citations omitted) (stating that Title VII “contains anti-discrimination and anti-retaliation
provisions that are indistinguishable from those of the ADA” as incorporated into the
Rehabilitation Act); see also Munro v. LaHood, 839 F. Supp. 2d 354, 360 (D.D.C. 2012) (stating
that the elements for a discrimination claim under Title VII and the Rehabilitation Act are the
same).
18
B. Materially Adverse Employment Actions
Plaintiff bases her discrimination and retaliation claims on the same set of facts.6 But
several of the alleged discriminatory and retaliatory incidents cannot be considered to be the
“adverse” employment actions necessary to make out the first element of Bonnette’s prima facie
case even though the concept of an adverse action in the retaliation context is more expansive
than in the discrimination context. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
67 (2006). “An adverse action in the retaliation context may involve something short of what
ordinarily would be considered a ‘personnel action’ (e.g., denial of promotion, discharge, salary
reduction), but a plaintiff nonetheless must point to an action that a ‘reasonable employee would
have found . . . materially adverse.’” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 75 (D.D.C.
2007), quoting Burlington, 548 U.S. at 67–68. A materially adverse action is one that results in
significant harm or hardship, such as affecting the plaintiff’s “position, grade level, salary, or
promotion opportunities,” Taylor, 571 F.3d at 1321 (internal quotation marks and citations
omitted), and “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. at 68, quoting Rochon, 438 F.3d at 1219. Several of
Bonnette’s allegations do not meet this standard, and since they are not sufficiently adverse to
support her retaliation claim, they cannot advance her discrimination claim either.
6 As the VA points out, the only allegations that could properly support retaliation claims
would be those describing events that occurred after Bonnette engaged in protected activity by
filing her first EEO complaint in January 2009. Def.’s Mem. at 39. Unfortunately, Bonnette’s
claims are often general and do not include specific dates or time frames. But since the Court is
granting the VA’s motion for summary judgment because the alleged events – regardless of
when they occurred – do not support claims for either discrimination or retaliation, it need not
determine which incidents could only be considered as part of the discrimination claim and
which occurred after the protected activity and are thus part of the retaliation claim as well.
19
1. Work Place Disagreements and Conflicts
Plaintiff was clearly frustrated by her interactions with her exacting supervisor, and her
complaint details a series of annoying and embarrassing workplace grievances. But the law is
clear that “‘purely subjective injuries,’ such as dissatisfaction with a reassignment, public
humiliation, or loss of reputation, are not adverse actions, the threshold is met when an employee
‘experiences materially adverse consequences affecting the terms, conditions, or privileges of
employment or future employment opportunities such that a reasonable trier of fact could find
objectively tangible harm.’” Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006), quoting
Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. Cir. 2002). Applying that standard, the Court
finds that the following allegations are the sorts of purely subjective injuries or disagreements
about management policies and decisions that do not qualify as adverse:
the fact that Therit described Bonnette’s Christmas tree as ugly, prompting co-
workers to make “abusive comments” about the tree, Compl. ¶¶ 74–77;
Therit’s oral reprimand of Bonnette for walking to work with co-workers, id. ¶
81;
Bonnette’s “public embarrassment” at a Christmas brunch, id. ¶¶ 88–89;
the failure to issue Bonnette a business expense credit card, id. ¶ 87;
the dispute that arose when Bonnette obtained the data use card for access to
locked areas from the building engineer, id. ¶ 91;
the allegation that Therit embarrassed Bonnette before an audience of mediators
and coordinators, id. ¶ 100;
the allegation that “Therit had a habit of coming to the door of Plaintiff’s work
space and standing there talking to plaintiff at the end of her hour of duty,”
thereby delaying Bonnette’s departure at the end of the day, id. ¶¶ 52–55;
the claims that Therit micromanaged Bonnette’s work and imposed unfair
deadlines, id. ¶¶ 95, 97, and made what Bonnette characterizes as unjustified
accusations that she mishandled a case during her PIP period, id. ¶ 106;
20
the claim that Therit falsely stated “that other employees had ‘issues’ with”
Bonnette, id. ¶¶ 92–94;
the electronic files and folders that were scattered on the Bonnette’s hard drive or
missing when Bonnette returned to work at the VA, id. ¶¶ 101–02;
the failure to reassign Bonnette to a different supervisor or a different position,
id. ¶¶ 33–34; and
the series of allegations that Bonnette was assigned to work with “a difficult
person” in another office on a particular project, that Therit informed that co-
worker that Bonnette was blind, and that Therit later “ridiculed” Bonnette’s
statement that she had been assigned to lead the work group during the other
employee’s absence. Id. ¶¶ 38–51.
See Baloch, 550 F.3d at 1197, 1199 (holding that “sporadic verbal altercations or disagreements”
and “false accusations without negative employment consequences do not qualify as adverse
actions for purposes of retaliation claims” and that courts should not engage in “judicial
micromanagement of business practices by second-guessing employers’ decisions”). Therefore,
the Court concludes that these incidents are precisely the kind of “petty slights or minor
annoyances” that cannot form the basis of a retaliation claim. See Burlington, 548 U.S. at 68.
2. Written Admonishment
Furthermore, the written admonishment Bonnette received for her failure to attend the
training session, Compl. ¶¶ 60–73, was not a materially adverse event. A letter of reprimand is
not materially adverse if it “contained no abusive language but rather job-related criticism.” See
Herbert v. Architect of Capitol, 766 F. Supp. 2d 59, 75 (D.D.C. 2011), quoting Baloch, 550 F.3d
at 1199 (holding that a letter of reprimand that contained no abusive language cannot be
transformed into an actionable adverse action because it threatened the employee with “more
severe disciplinary action . . . up to and including removal from employment” if the employee
committed another infraction). Since Bonnette has not alleged that the reprimand contained
abusive language or that it affected her position, grade level, salary, or promotion opportunities,
21
no reasonable jury could find that the VA’s written admonishment for Bonnette’s flawed
decision to send her sighted reader to a training session while she attended a holiday party was
materially adverse.
3. Return to Work and Performance Improvement Plans
As the VA argues, the return to work plan and the PIP were not materially adverse events
either. A PIP placement can constitute an adverse employment action where it exposes the
individual to direct economic harm such as loss of salary, benefits, position, or promotional
opportunities. See Porter v. Shah, 606 F.3d 809, 818 (D.C. Cir. 2010). But the sole act of
placing a plaintiff on a PIP without more does not constitute an adverse employment action.
Kelly v. Mills, 677 F. Supp. 2d 206, 222 (D.D.C. 2010) (“The PIP placement itself had no effect
on the terms or conditions of [plaintiff’s] employment and thus was not ‘materially adverse’
because it did not cause a ‘significant change in employment status.’”). In Porter, the court held
that a negative performance rating combined with a PIP constituted a material adverse action
because the two actions could “expose [the plaintiff] to removal, reduction in grade, withholding
of within grade increase or reassignment.” 606 F.3d at 818. But here, unlike in Porter, the VA
did not combine Bonnette’s PIP or the work plan with a negative performance rating. Neither of
these plans purported to affect the terms or conditions of Bonnette’s employment; instead, they
gave Bonnette time “to demonstrate fully successful performance.” Ex. 17 to Def.’s Mot. at 13–
14. While Bonnette’s failure to fulfill the requirements of the plans ultimately led to her
termination, she has not argued or demonstrated that the placement on these plans itself caused
her to suffer any significant change in her employment status. See Kelly, 677 F. Supp. 2d at 222.
22
4. Alleged Diminution of Bonnette’s Duties
Bonnette alleges that the VA downgraded the quality of her employment responsibilities,
Compl. ¶¶ 17–19, 31, 78, 98–99, by, in part, assigning her work that was “felt lots more like a
clerical job than anything a GS-11 would be doing on a routine basis.” Bonnette EEO Affidavit
(July 6 and 10, 2009), Ex. 1 to Pl.’s Opp. at 223. A reassignment of job duties can be materially
adverse under certain circumstances. Burlington, 548 U.S. at 71 (holding that reassigning an
employee to a task that was “by all accounts more arduous and dirtier” could be materially
adverse). However, Bonnette cannot show that performing some clerical work reduced the
prestige of her position because, by her own admission, all employees had to do some clerical
work because the office did not utilize secretaries. Bonnette Dep. at 112:23–113:2. Bonnette
also alleges that the VA denied her “the right to mediate disputes.” Compl. ¶ 82. However, as
the VA has explained, ORM, the agency where Bonnette worked, oversees mediation services
but does mediate disputes. Therit EEO Aff. at 297–98; Torres EEO Aff. at 357. Further, even
assuming that the VA reduced some of Bonnette’s duties and denied her the opportunity to
mediate disputes, Bonnette has not shown that such a reduction or denial was materially adverse
because she does not allege that it affected her work hours or pay. See Mungin v. Katten Muchin
& Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997) (“[C]hanges in assignments or work-related
duties do not ordinarily constitute adverse employment decisions if unaccompanied by a
decrease in salary or work hour changes.”).7
7 Even if Bonnette could show that she experienced a materially adverse reduction in her
responsibilities, defendant would still be entitled to summary judgment with respect to these
claims because Bonnette has not provided any evidence that the change was motivated by
discrimination or retaliation. See Baloch, 550 F.3d at 1198 (holding that “even assuming that
[the plaintiff] had suffered an adverse employment action [a shift in responsibilities], he did not
produce evidence sufficient to overcome summary judgment on the question whether he suffered
impermissible discrimination”).
23
In sum, the Court concludes that while the allegations in paragraphs 17–19, 31, 33–34,
38–55, 60–78, 81–82, 84, 87–89, 91–102, and 106 of Bonnette’s complaint may have been
unpleasant, frustrating, and inconvenient, Title VII does not create or require federal courts to
enforce “a general civility code for the American workplace.” Burlington, 548 U.S. at 68,
quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). As the court
observed in Kelly: “Plaintiff may have preferred a supervisor with a more affectionate or
inclusive management style, but [she] has not provided the Court with an explanation of how any
or all of these events constituted a ‘significant change in employment status’ or had ‘any effect
on the salary, benefits, or grade’ of [her] employment responsibilities or future employment
opportunities.” 677 F. Supp. 2d at 221, quoting Blackmon-Malloy v. U.S. Capitol Police Bd.,
338 F. Supp. 2d 97, 106 (D.D.C. 2004) (alterations omitted). So, these allegations do not support
Bonnette’s retaliation claim in Count 2.
And because Bonnette has failed to establish that the challenged actions described in the
paragraphs listed above are materially adverse under the more liberal retaliation rubric, her
discrimination claims also fail as to those incidents. See Herbert, 766 F. Supp. 2d at 80.
C. Remaining Retaliation and Discrimination Claims
What remains of the complaint, then, are the allegations that the VA placed Bonnette on
paid administrative leave and terminated her employment in February 2009 and again in March
2010, Compl. ¶ 108; Pl.’s Opp. at 2, 5, failed to compensate her for working overtime, Compl. ¶¶
25–26, and “submitted a false report contending that Plaintiff was a security risk,” Compl. ¶ 107.
Since the VA has proffered explanations for these actions, the Court need only consider whether
Bonnette’s “evidence creates a material dispute on the ultimate issue of retaliation [and
discrimination] either directly by [showing] that a discriminatory reason more likely motivated
24
the employer or indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Jones, 557 F.3d at 678 (internal citation and quotation marks omitted).8 Bonnette
must present enough evidence to allow a reasonable jury to infer “that the employer’s given
explanation was pretextual” and “shielded discriminatory motives.” Murray v. Gilmore, 406
F.3d 708, 713 (D.C. Cir. 2005); Jones, 557 F.3d at 678, citing Aikens, 460 U.S. at 715. After
reviewing all of the evidence, the Court concludes that Bonnette has not met this burden.
1. Administrative Leave and Termination
The VA argues that it placed Bonnette on paid administrative leave and terminated her
employment in February 2009 because she “[1] failed to complete assignments on time, [2]
committed three privacy violations, [3] misused government credit cards, [4] skipped mandatory
training, and [5] misused government resources.” Def.’s Reply at 4. Similarly, the VA contends
that it terminated Bonnette’s employment again in 2010 because her performance remained
inadequate between March 2009 and March 2010, and she failed to complete a number of tasks
in a timely manner or at all. Def.’s Mem. at 37–38. The VA has offered evidence in the form of
statements from Bonnette’s supervisors, emails between Bonnette and her supervisor regarding
her performance deficiencies, letters of reprimand, and performance evaluations to support its
assertions. The evidence proffered by Bonnette in response is not sufficient to support the
inference that these are pretextual assertions.
8 Once “the defendant proffers a nondiscriminatory and nonretaliatory rationale, it is
unnecessary to consider whether the plaintiff actually made out the elements of a prima facie
case,” and the only question becomes whether the defendant intentionally discriminated against
the plaintiff. Kersey, 586 F.3d at 17, n.2. citing Aikens, 460 U.S. at 715. “The defendant need
not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if
the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the
plaintiff.” Texas Dept. of Cmty Affairs v. Burdine, 450 U.S. 248, 254 (1981) (internal citations
omitted).
25
a. Temporal Proximity
The main evidence that Bonnette proffers to support her allegation of retaliatory and
discriminatory animus is the temporal proximity between her January 2009 EEO complaint and
her placement on administrative leave and termination in February 2009. However, temporal
proximity without more is insufficient to prove that the defendant’s legitimate non-retaliatory
reasons are pretextual. Talavera v. Shah, 638 F.3d 303, 313 (D.C. Cir. 2011) (“Although an
adverse action that occurs shortly after protected activity can be part of a finding of retaliation,
positive evidence beyond mere proximity is required to defeat the presumption that the proffered
explanations are genuine[.]”) (internal citations and quotation marks omitted).
In Ginger v. District of Columbia, 527 F.3d 1340, 1346–47 (D.C. Cir. 2008), the D.C.
Circuit held that although the materially adverse action occurred one month after the filing of
plaintiff’s EEO claims, temporal proximity alone was insufficient to overcome the defendant’s
legitimate explanation because the plaintiffs did not dispute the defendant’s reasons and failed to
provide evidence as to why those reasons were pretextual. As in Ginger, Bonnette does not
dispute the facts underlying the VA’s explanations. Rather, she admits that she had performance
deficiencies, disclosed confidential information, misused her government issued travel card, and
missed part of a mandatory training session. Pl.’s Opp. at 10–11; Bonnette Dep. at 133:4–
136:20, 142:15–145:1, 164:18–166:16. Bonnette’s temporal proximity argument is further
undermined by the undisputed fact that the VA was considering terminating her before she filed
her 2009 EEO complaint. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)
(“Employers need not suspend previously planned [actions] upon discovering that a
[discrimination] suit has been filed, and their proceeding along lines previously contemplated,
though not yet definitively determined, is no evidence whatever of causality.”]; see also
26
Plaintiff’s Answers to Defendant’s Interrogatories, Ex. 14 to Def.’s Mot. ¶ 6 (Bonnette has stated
that she was “threatened . . . with termination [in] December 2008” before her 2009 EEO
complaint). So although the termination decision followed the filing of the EEO case, see Def.
St. Facts ¶ 60, Bonnette has not provided evidence that would enable a reasonable jury to find
that the VA’s proffered set of justifications was pretextual.
b. Bonnette’s Explanations for the VA’s Justifications
Although Bonnette does not dispute the facts underlying the VA’s rationale for her
termination, she attempts to challenge the fairness of the agency’s explanations by offering
excuses for each of the events. However, “[i]t is not enough for the plaintiff to show that a
reason given for a job action is not just, or fair, or sensible. [She] must show that the explanation
given is a phony reason.” Sewell v. Chao, 532 F. Supp. 2d 126, 138 (D.D.C. 2008), citing
Pignato v. Am. Trans Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994). “‘Once the employer has
articulated a non-discriminatory reason for its action, . . . the issue is not the correctness or
desirability of [the] reasons offered . . . [but] whether the employer honestly believes in the
reasons it offers.’” Id., quoting Fischbach v. D.C. Dep’t. of Corr., 86 F.3d 1180, 1183 (D.C. Cir.
1996). None of Bonnette’s excuses undermines the credibility of the VA’s proffered reasons.
First, with respect to her commission of “privacy violations,” Bonnette argues that they
were de minimis, she questions whether they constituted “privacy violations” at all, and she
asserts that she was unable to see the confidential information contained in the relevant emails.
Pl.’s Opp. at 10-11; Pl.’s St. Facts ¶¶ 46–48. But the prompt reaction after the first incident
suggests that these occurrences were in fact privacy violations and were not de minimis.
Bonnette’s supervisor reported the first privacy violation to the ORM Privacy Officer and
Bonnette received general privacy awareness training thereafter. Def.’s St. Facts ¶ 46. Further,
27
in an effort to avoid future incidents, Bonnette’s supervisor asked to review similar emails in the
future before Bonnette was to send them. Id. Despite this specific instruction, Bonnette sent two
additional emails containing confidential information without her supervisor’s review and
approval. Thus, Bonnette cannot attribute these two incidents to her disability.
Second, Bonnette contends that she accidentally misused her government travel card
because she could not distinguish between her personal credit card and the government issued
card. Bonnette Dep. at 133:4–135:4. Even if the Court credits this explanation and it declines to
speculate about practical solutions that could have been adopted to avoid this problem, the
“misuse of government-issued credit cards is widely accepted to be a legitimate reason to impose
disciplinary action,” and Bonnette has provided no evidence demonstrating that the reprimand
for this misconduct was motivated by discrimination or retaliation. See Bolden v. Clinton, 847 F.
Supp. 2d 28, 37 (D.D.C. 2012) (holding that a plaintiff failed to show that her suspension for her
misuse of a government issued credit card was based on discrimination where she failed to show
any causal connection between the challenged act and her race or age).
Third, with respect to the failure to attend part of the mandatory training, Bonnette asserts
that she received permission from one of her supervisors and the trainer. Pl.’s St. Facts ¶ 53.
The VA disputes this assertion, noting that Bonnette simply informed the trainer that she would
miss part of the training because of a Christmas party and the supervisor in question did not
recall giving Bonnette permission to miss the training. See Letter of Reprimand, Ex. 15 to Def.’s
Mot. at 1–2; Torres EEO Aff. at 370. Bonnette also argues that the VA did not chastise any
other employee for attending the Christmas sing-along. Compl. ¶ 67. But that statement alone
does not prove discriminatory or retaliatory intent because Bonnette does not indicate whether
another employee missed a mandatory meeting in order to attend the event. It also does not
28
excuse the poor judgment Bonnette exercised on this occasion: the agency provided a sighted
reader to work with her to accommodate her disability – not to serve as a surrogate who could
attend employment related events in her stead when she preferred to be elsewhere. In any event,
Bonnette’s excuses relate only to whether the VA’s consideration of this occurrence in deciding
to terminate Bonnette’s employment was fair and not whether the reason was pretextual.
Finally, Bonnette asserts that her performance was not deficient because she was rated as
“fully successful” for her first eighteen months, she was promoted from GS-12 to GS-13, and
that any performance deficiencies were caused by her second supervisor’s delay in providing the
necessary approvals for her projects. Pl.’s Opp. at 11, 13–16. But the record shows that despite
her initial “fully successful” ratings and her promotion, Bonnette received feedback about how
she needed to improve. Therit EEO Aff. at 316. For example, in December 2008, Therit
informed Bonnette that her performance was “less than satisfactory,” and she detailed a number
of tasks that Bonnette had to complete in the following month. Ex. 28 to Def.’s Mot. Bonnette
admits that she failed to complete these tasks, but she contends the her failure to meet these and
other deadlines were caused by Therit’s purposeful delay in providing the necessary approvals
for her projects. According to Bonnette, Therit’s delay in granting the necessary approvals
“virtually guarantee[ed] that Bonnette would not be able to meet the requirements of the return to
work standards” and the PIP. Pl.’s Opp. at 4, 12–17.
In Sewell, the court rejected the plaintiff’s contention that she was “set-up” to fail
because she was denied the training needed to fulfill her responsibilities. 532 F. Supp. 2d at 139.
The court found that argument to be undercut by the evidence because the plaintiff’s supervisors
told her who to contact for the necessary training, asked her to report back if she had any issues
acquiring the training, expected her to do the work, and the plaintiff did not follow up to let them
29
know that she had not received the training. Id. at 140. As in Sewell, Bonnette’s argument fails,
since it is contradicted by the very evidence she proffers.
The two emails Bonnette cites reflect that Therit responded to her request for feedback
expeditiously. Bonnette sent the first email on a Friday by asking for feedback on a project. Ex.
18 to Pl.’s Opp. at 305–07. In a lengthy response sent on Sunday, Therit provided detailed edits,
agreed with some of Bonnette’s suggestions, noted that Bonnette had already failed to meet the
deadlines on the assignment, and asked to meet to “explore ways to ensure deadlines are met and
assignments completed timely.” Id. In the second email exchange, Therit responded to
Bonnette’s request for feedback within minutes and asked Bonnette to propose an alternative
topic for the teleconference she was planning. Ex. 17 to Pl.’s Opp. at 433. Thus the emails do
not show that Therit obstructed Bonnette’s progress, much less that she did so with any
retaliatory or discriminatory animus.
Similarly, the two affidavits from Cassandra Harmon, Bonnette’s sighted reader, fail to
provide the evidence necessary to show that the VA’s actions were discriminatory. Harmon does
say that Therit “hindered Ms. Bonnette’s ability to complete [an] assignment based on the
timeline” that Therit presented by rejecting timelines that had formatting issues or clerical errors
and by cancelling and refusing to re-schedule meetings. Harmon Affidavit, Ex. 9 to Pl.’s Opp. at
1. She adds that Therit denied or refused to respond to Bonnette’s request for deadline
extensions. Id.; Pl.’s Opp. at 4. But even if those observations are accurate, they only show that
Bonnette’s supervisor was a busy, demanding, and difficult manager who by her own admission
cannot recall approving a timeline for any employee after only one draft. Therit Dep. at 148:1–
21. Harmon cannot provide evidence that Therit’s actions were motivated by retaliatory animus.
See Sewell, 532 F. Supp. 2d at 143 (“Plaintiff has demonstrated that [her supervisor] was a
30
difficult or demanding manager, but she has not shown that any of the hostility evidenced by [the
supervisor] was motivated by discriminatory or retaliatory animus.”).
Therefore, the Court concludes that Bonnette’s excuses and explanations relate to
whether her placement on administrative leave and termination were “just, or fair, or sensible”
and that they are insufficient to carry her burden to demonstrate that the VA’s proffered reasons
were pretextual.
2. Compensation for Overtime
Bonnette alleges that the VA failed to compensate her for working overtime. Compl. ¶¶
25–26. The VA has explained that it has a policy of not awarding overtime unless it was
approved in advance. Def.’s Mem. at 32. Bonnette has not alleged that she obtained advance
approval or that the VA applied its overtime policy in a discriminatory or retaliatory manner.
She has thus failed to provide any reason for a reasonable jury to find the VA’s proffered
explanation unworthy of credence.
3. Security Alert
Bonnette asserts that Therit “submitted a false report contending that Plaintiff was a
security risk” after she was discharged. Compl. ¶ 107. In response, the VA has stated that Therit
did not participate in or have any control over the issuance of the security alert. Def.’s Mem. at
35–36. But even if Therit was involved in the issuance of the security alert, Bonnette’s mere
conclusion that the security alert was issued “because of her blindness” is insufficient proof of
retaliatory or discriminatory animus. See Anderson, 477 U.S. at 252 (stating that to survive
summary judgment, the non-movant may not rest upon the mere allegations or denials of its
pleadings, but must instead establish more than “the mere existence of a scintilla of evidence” in
support of its position).
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Since Bonnette has failed to rebut the VA’s proffered legitimate, nondiscriminatory, and
non-retaliatory reasons for its actions, the Court will grant the VA’s motion for summary
judgment on the remaining discrimination and retaliation claims.
II. Reasonable Accommodation
Bonnette also alleges that the VA failed to accommodate her disability as required by
law. The Rehabilitation Act requires employers to provide “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability . . .
unless [the employer] can demonstrate that the accommodation would impose an undue hardship
on the operation of the [employer’s] business[.]” 42 U.S.C. § 12112(b)(5)(A). To establish that
the defendant failed to provide a reasonable accommodation, the plaintiff must show that: (1)
she has a disability within the meaning of the statute; (2) the defendant had notice of her
disability; (3) she could perform the essential functions of the employment position with or
without reasonable accommodation; and (4) the defendant refused to make the accommodation.
See Faison v. Vance-Cooks, 2012 WL 4789172, at *5 (D.D.C. Oct. 9, 2012), citing Woodruff v.
Peters, 482 F.3d 521, 527 (D.C. Cir. 2007). If the plaintiff establishes a prima facie case of
failure to provide reasonable accommodation, then it is up to the employer to demonstrate that
the accommodation would have imposed an undue burden on its business; the ultimate burden
however, remains with the plaintiff. Faison, 2012 WL 4789172, at *5, citing Barth v. Gelb, 2
F.3d 1189, 1185–86 (D.C. Cir. 1993) (explaining that the three part burden-shifting framework
set forth for in McDonnell, 411 U.S. 792 (1973), does not apply to reasonable accommodation
claims; such claims should be tested through the “application of traditional burdens of proof”).
The VA does not contest the first two elements: that Bonnette has a disability within the
meaning of the statute or that it knew about the disability. It asserts, though, that Bonnette was
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not a “qualified individual” who could perform the functions of her job with or without
accommodations, and that, in any event, the VA reasonably accommodated her disability.
Where a plaintiff, like Bonnette, concedes that she cannot perform the essential functions of her
job without some form of accommodation, “the regulation requires [the Court] to ask simply
whether any reasonable accommodation would have allowed [Bonnette] to perform all the
essential functions of her job without creating an undue hardship for the agency”.9 Carr v. Reno,
23 F.3d 525, 529 (D.C. Cir. 1994). To survive summary judgment, Bonnette must demonstrate
that the VA failed to provide reasonable accommodations that would have allowed her to
perform her essential employment functions, and the VA must fail to show that such
accommodations would have caused an undue burden. See Graffius v. Shinseki, 672 F. Supp. 2d
119, 126 (D.D.C. 2009).
Bonnette asserts that she requested the following reasonable accommodations: (1)
replacement of Adrienne Leal as her sighted reader; (2) accommodation of her service dog; and
(3) exclusive use of the unisex restroom and/or access to the ladies restroom.10 After a review of
9 The “with or without reasonable accommodation” language means “either with
accommodation or without it: that is, an individual with handicaps is qualified if she can perform
the essential functions of her position with reasonable accommodation. If she can perform these
functions without reasonable accommodation, so much the better—she is, of course, still
qualified.” Carr, 23 F.3d at 529 (emphasis in original). Here, Bonnette has admitted that she
needed reasonable accommodations to perform her essential employment functions. Pl.’s Opp.
at 19. So the Court will not consider whether Bonnette could have performed her duties without
reasonable accommodation.
10 These three requests are the only ones that are still at issue. In her complaint, Bonnette
also alleges that she requested the use of JAWS software and other scanning and adaptive
equipment. Compl. ¶ 112. But she did not contest the evidence presented by the VA that it in
fact accommodated these requests. Therefore, the Court will treat these allegations as conceded.
See FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997) (when a party does not address
arguments advanced by her opponent, the court may treat those arguments as conceded).
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the record, the Court concludes that the VA reasonably accommodated Bonnette’s needs for a
sighted reader, a service dog, and an accessible restroom.
A. Sighted Reader
The complaint sets out Bonnette’s dissatisfaction with one of her sighted readers. But
“[a]n employer is not required to provide an employee that accommodation [she] requests or
prefers, the employer need only provide some reasonable accommodation.” Aka v. Wash. Hosp.
Ctr ., 156 F.3d 1284, 1301 (D.C. Cir. 1998), quoting Gile v. United Airlines, Inc., 95 F.3d 492,
499 (7th Cir. 1996). The D.C. Circuit has defined a “reasonable accommodation” as one
“employing a method of accommodation that is reasonable in the run of cases . . . .” Barth, 2
F.3d at 1187 (emphasis omitted); see also Norden v. Samper, 503 F. Supp. 2d 130, 145 (D.D.C.
2007) (“[A]ccommodations are reasonable if they allow the employee to perform the essential
functions of the job without imposing undue hardship on the employer.”).
In Carter v. Bennett, 840 F.2d 63 (D.C. Cir. 1988), a blind plaintiff asserted that his
employer did not reasonably accommodate his disability. He complained that he had the
assistance of sighted readers for only 18 hours a week, he did not choose his readers, he had
repeatedly told his supervisors that his readers “could not read” and “didn’t have the skills
necessary,” and he did not get the reader of his choice until later in his employment. Id. at 67.
But even under those circumstances, the D.C. Circuit upheld the district court’s dismissal of the
plaintiff’s reasonable accommodation claim because the employer attempted to secure a full-time
reader with plaintiff’s input, and even after the plaintiff received the reader of his choice, his
supervisors continued to find his work unsatisfactory. Id. at 68.
The facts of this case are even less compelling than those presented in Carter. The VA
provided Bonnette with a full-time sighted reader. It permitted her to be extensively involved in
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hiring and training her readers, worked with her to define the duties of the sighted reader, and
solicited and used her input to remedy her sighted reader’s alleged performance deficiencies.
See Ex. 15 to Pl.’s Opp.; Def. St. Facts ¶¶ 26–27. Moreover, even when Bonnette received the
reader of her choice, her supervisors remained unsatisfied with her performance. See Decision-
Proposed Removal, Ex. 19 to Def.’s Mot.
Bonnette’s reliance on Porter v. Jackson, 668 F. Supp. 2d 222 (D.D.C. 2009) and
Bonnette v. D.C. Court of Appeals, 796 F. Supp. 2d 164, 171 (D.D.C. 2011) is misplaced.
Bonnette cites Porter for the proposition that “where, as here, the Defendant argues that it has
provided a reasonable accommodation to Bonnette, that accommodation must exceed the
reasonable minimum standards . . . .” Pl.’s Opp. at 20. This is a misrepresentation of Porter. In
that case the court simply noted the defendant’s argument that its proffered accommodation was
reasonable because it exceeded minimum standards. Porter, 668 F. Supp. 2d at 234. At no point
did the court create a new standard based on that argument; rather, it found that the plaintiff’s
accommodation request was unreasonable in light of the defendant’s proposed reasonable
accommodation. Id. at 234–35.
Although plaintiff’s characterization of the Bonnette case is accurate, that case is
distinguishable. The ADA contains a provision that specifically addresses examinations such as
the Multistate Bar Exam that was at issue in Bonnette. The implementing regulation for that
provision requires that such professional examinations be administered “so as to best ensure that,
when the examination is administered to an individual with a disability . . ., the examination
results accurately reflect the individual’s aptitude or achievement level . . . .” Bonnette, 796 F.
Supp. 2d at 180. The court’s decision in Bonnette rested on that “best ensure” regulation and not
on general principles regarding reasonable accommodations in the workplace. Id. (holding that
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the plaintiff was entitled to an auxiliary aid that would “best ensure” that her score reflected her
achievement level).
Thus, the Court finds that the VA did not fail to reasonably accommodate Bonnette’s
need for a sighted reader.
B. Service Dog
Bonnette does not dispute that she was able to be accompanied in the workplace by her
service dog. Pl.’s Opp. at 20–21. She also does not contest that the agency arranged for more
frequent vacuuming because some of her colleagues had allergies to dog hair, that it paid $800
for a special air filter for dog dander, and that it addressed mistreatment from her co-workers
about her service dog. Def.’s St. Facts ¶¶ 35–36, accord Pl.’s St. Facts, ¶¶ 35–36. Nonetheless,
Bonnette argues that the VA did not reasonably accommodate her need for a service dog because
on one occasion, Therit asked her to take the dog further away from the building to a highly
trafficked area to allow the dog to relieve itself. Pl.’s Opp. at 20–21. The Court finds that no
reasonably jury could conclude that the numerous steps that the VA took to accommodate
Bonnette’s service dog were inadequate because of a single incident of insensitivity.
C. Access to Restroom
Bonnette asserts that the VA failed to accommodate her when it instructed her not to use
the women’s restroom and informed her that the unisex restroom was for her exclusive use, but
she walked in to discover a male employee using the unisex restroom on one occasion. Pl.’s
Opp. at 21. While it may have been embarrassing, this single unfortunate incident does not
demonstrate an unlawful failure to accommodate Bonnette’s disability.
The VA has explained that some of its female employees were allergic to dogs, so to
accommodate Bonnette’s need to be accompanied by a service animal, it gave Bonnette special
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access to a unisex restroom. Def. Stat. Facts ¶ 23. The agency notes that it was under the
impression that Bonnette was the only one with a key to that room, and that after Bonnette was
surprised by the male interloper, it took additional steps to ensure that Bonnette was the only
person who could access the restroom. Therit Dep. at 24:21–26:1. Therefore, the Court
concludes that even if Bonnette was instructed not to use the women’s restroom, the VA
reasonably accommodated her by taking steps to ensure that she had exclusive access to a
reasonable and appropriate alternative.
In light of the undisputed evidence of the steps the VA undertook to accommodate
Bonnette’s needs, the Court will grant summary judgment for the defendant on the failure to
accommodate claim.
III. Hostile Work Environment
The complaint does not specifically allege that the VA was a hostile work environment.
But in her opposition to the motion to dismiss, Bonnette argues that the facts are sufficient to
support such a claim. Pl.’s Opp. at 21–23. Since the D.C. Circuit has been willing to assume
that a hostile work environment could be a form of discrimination under the Rehabilitation Act,
see, e.g., Kuraner v. Mineta, No. 00–5416, 2001 WL 936369, at *1 (D.C. Cir. July 10, 2001), the
Court will assess the sufficiency of the evidence proffered by Bonnette under this rubric as well.
But Bonnette’s claim on this basis fails for the same reasons as those set forth above: the
complained-of events are simply petty, ordinary, workplace disputes, and there is no evidence
that were motivated by discrimination. 11
11 It is also unclear whether Bonnette’s hostile work environment claim is discrimination-
based or retaliation-based but this does not affect the Court’s analysis because the legal standard
is the same for either theory. Baloch, 550 F.3d at 1201, citing Harris v. Wackenhut Servs., Inc.,
419 Fed. App’x 1, 12 (D.C. Cir. 2001).
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The VA contends that Bonnette’s hostile work environment claims should be dismissed
because the “discrete and isolated incidents” that Bonnette identifies “cannot satisfy even the
minimum criteria for a hostile work claim,” and Bonnette has failed to demonstrate how any of
these events were related to her disability or protected activities. Def.’s Mem. at 42. To make
out a hostile work environment claim, a plaintiff must demonstrate that the “workplace is
permeated with discriminatory intimidation, ridicule, and insult” and that this behavior is
“sufficiently severe or pervasive [as] to alter the conditions of the victim’s employment and
create an abusive working environment.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)
(internal citation and quotation marks omitted). “To determine whether a hostile work
environment exists, [courts] look to ‘all the circumstances,’ including ‘the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002), quoting
Harris, 510 U.S. at 23; see also Baloch, 550 F.3d at 1201 (same). This standard “ensure[s] that
Title VII does not become a general civility code” that involves courts in policing “the ordinary
tribulations of the workplace.” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88, (1998)
(internal citation and quotation marks omitted).
Bonnette’s allegations cannot, as a matter of law, support a hostile work environment
claim. In alleging that the VA created a hostile working environment because of her disability,
Bonnette simply points again to the separate minor incidents described in her discrimination and
retaliation claims. Pl.’s Opp. at 21–22. Even assuming the veracity of Bonnette’s allegations,
there is not enough in this recitation to support a finding that the VA subjected her to conduct
“sufficiently severe or pervasive to alter the conditions of [her] employment and create an
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abusive working environment.” Harris, 510 U.S. at 21, quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 67 (1986); see also Mahoney, 824 F. Supp. 2d 49, 62–63 (D.D.C. 2011)
(stating that where a plaintiff’s allegations are not sufficiently severe to support a hostile
environment claim, the court need not address whether plaintiff’s claims are impermissibly based
on the same facts used to support his discrete retaliation claims).
Bonnette admits that some of the alleged actions, such as the ridicule of her Christmas
tree, in isolation would not qualify as creating a hostile work environment, but she avers that the
“overwhelming continuity of [her supervisor’s] actions toward [her] because of her blindness,
e.g., denial of access to the woman’s room, denial of business expense card and submission of
the security alert status report provide sufficient evidence that this environment was created
because of [Bonnette’s] disability.” Pl.’s Opp. at 22–23 (emphasis in original). But that
connection is absent from the factual presentation. Only one of the issues – the inability to use
the women’s restroom – had any relationship to Bonnette’s disability at all, and she has failed to
show how this was hostile since she was provided with exclusive access to another facility and
the change was needed to accommodate Bonnette’s dog. Many of the challenged actions –
placement on a PIP, micromanagement of her work, and the written admonishment for her
failure to attend mandatory training – are the type of “work-related actions by supervisors” that
provide insufficient grounds for a hostile work environment claim. See Wade v. District of
Columbia, 780 F. Supp. 2d 1, 19 (D.D.C. 2011), citing Nunridden v. Bolden, 674 F. Supp. 2d 64,
94 (D.D.C. 2005) (“The removal of important assignments, lowered performance evaluations,
and close scrutiny of assignments by management cannot be characterized as sufficiently
intimidating or offensive in an ordinary workplace context.”) (alterations omitted). The other
incidents of “harassment,” “embarrassment,” and ridicule may have may have been unpleasant
39
and uncomfortable, but taken as a whole, they do not arise to the level needed to support a hostile
work environment claim. See Hernandez v. Gutierrez, 656 F. Supp. 2d 101, 106 n.6 (D.D.C.
2009) (no hostile work environment found even under such egregious facts as where “one co-
worker frequently touched his private parts in front of [the plaintiff], told her his marriage was
not the same as it used to be, talked to her about humans and animals having sex, showed her
sexually explicit pictures, and told her that a paperclip could be used as a weapon and then . . .
put a fist close to her face”). Bonnette gives the Court no basis for inferring that the alleged
incidents were anything more than offensive or inconvenient.
Thus, because Bonnette has failed to allege facts sufficient to establish that the
challenged acts were severe or pervasive enough to constitute a hostile work environment, any
hostile work environment claim embedded somewhere in the complaint does not survive the
VA’s motion for summary judgment.
CONCLUSION
For the foregoing reasons, the Court will grant the VA’s motion for summary judgment
in full. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: November 30, 2012
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