Smith v. Holder

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RHONDA SMITH,
Plaintiff, Civil Action No. 10-1302 (BAH)
v. Judge Beryl A. Howell
LORETTA LYNCH,
Attorney General of the United States
Defendant.
MEMORANDUM OPINION
The plaintiff, Rhonda Smith, has been a long-time employee of the Department of
Justice’s (“DOJ”) Office of Justice Programs (“OJP”) and, since July 2006, worked as a GS-13
staff accountant in OJP’s Customer Service Branch. Compl. ¶¶ 7, 21, ECF No. 1. She filed this
suit against the defendant, Attorney General, in her official capacity, 1 alleging that, between
2007 and 2009, she was subjected to a hostile work environment and retaliation because she is
African-American and suffered from carpal tunnel syndrome (“CTS”) in her right hand, in
violation of Title VII, 42 U.S.C. §§ 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C.
§§ 701 et seq. Compl. ¶¶ 240–79. Pending before the Court is the defendant’s Renewed Motion
to Dismiss or, in the Alternative, for Summary Judgment (“Def.’s Mot.”), ECF No. 55, pursuant
to Federal Rules of Civil Procedure 12(b)(6) and 56. For the reasons set forth below, the
defendant’s motion is granted.
1
The plaintiff originally named former Attorney General Eric Holder Jr. as the defendant in this case. Pursuant to
Federal Rule of Civil Procedure 25(d), the Court automatically substitutes his successor, Loretta Lynch, as the new
defendant.
1
I. BACKGROUND
The plaintiff has alleged myriad forms of mistreatment by OJP over a span of several
years, allegedly due to both her race and her CTS. See generally Compl. Although the plaintiff
initially alleged that the defendant failed to accommodate her asthma and that the defendant
“discriminated against her by ‘improperly adjusting her service computation dates’ and ‘delaying
her a [sic] within-grade increase in [salary in] 2008,’” the plaintiff subsequently withdrew those
claims. Pl.’s Opp’n Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 59 at 2 n.1–2. 2 Set out below is
background to assess the five 3 remaining actions by OJP that the plaintiff alleges establish her
claims of racial and disability discrimination, hostile work environment, and retaliation. See id.
¶¶ 2–3.
A. The Plaintiff’s Leave History And Onset Of CTS Symptoms
Approximately two months after the plaintiff started in her role as a staff accountant in
the OJP’s Customer Service Branch, in September 2006, she was issued a “Memorandum of
Counseling and Possible Leave Restriction” by her first-line supervisor, Darlene Mongelli. See
Pl.’s Opp’n Ex. 14 (the “Leave Counseling Memo”) at 1, ECF No. 59-19. 4 The Leave
Counseling Memo noted that, as of September 15, 2006, the plaintiff had accrued two hours of
2
The plaintiff and defendant filed nearly one hundred exhibits, with multiple duplicates, with their memoranda in
support of and opposition to the instant motion. See, e.g., Def.’s Mot. Ex. 31 (Leave Counseling Memo issued to
plaintiff); Pl.’s Opp’n Ex. 14 (identical exhibit). Although each exhibit and submission from the parties has been
reviewed, only those exhibits necessary to provide context for resolution of the instant motion are cited herein.
3
The Complaint and the plaintiff’s briefing refer to six OJP actions, but two of the actions described by the plaintiff
amount to the same thing, namely, denying the plaintiff the use of advance sick leave. See Pl.’s Opp’n ¶ 2(c)
(stating hostile work environment based on “continuously denying [the plaintiff] advance sick leave in 2007 and
2008”); id. ¶ 2(e) (stating hostile work environment based on “continuously not permitting [the plaintiff] to use
advance leave for medical related absences while granting requests from other, similarly situated employees who
were not African-American or disabled”).
4
The defendant asserts that the Leave Counseling Memo was effective in August 2006, see Def.’s Statement of
Material Facts Not In Genuine Dispute (“Def.’s SMF”) ¶ 4, ECF No. 55, but this document, which bears no issuance
date, refers to leave the plaintiff had accrued as of September 15, 2006, and is signed and dated by the plaintiff and
her supervisor as of September 28, 2006. See Leave Counseling Memo at 1, 4. Based on these contents, the Leave
Counseling Memo appears to have been issued and became effective sometime in September 2006.
2
annual leave, 134.50 hours of leave without pay (LWOP), and a deficit of 114.75 hours of sick
leave. Id. The Leave Counseling Memo stated that the plaintiff’s prior leave history “shows that
there is a long-term pattern of frequent unscheduled absences.” Id. The plaintiff was advised
that she “must improve [her] attendance,” id., and she was given specific procedures to follow
before taking additional leave, id. at 2–4. Specifically, the Leave Counseling Memo stated the
plaintiff “must obtain verbal approval of” any unscheduled leave and that she submit requests
for scheduled leave “at least 1 workday prior to the scheduled leave.” Id. at 2 (emphasis in
original). The Leave Counseling Memo further warned that if the plaintiff were “absent without
leave having been approved, the absence [would] be recorded as absence without official leave
(AWOL).” Id.
The plaintiff was specifically required by the Leave Counseling Memo “to promptly
arrive at work at [her] regularly scheduled time . . . and to work [her] tour of duty each
workday.” Id. at 3. The Leave Counseling Memo required that the plaintiff notify the plaintiff’s
supervisor or second line supervisor, Joanne Suttington, if the plaintiff were running late, id., and
required that she submit “the original copy of a medical certificate signed by the attending
physician” for any medical absence resulting in more than three consecutive missed days of
work, id. at 3. 5 The plaintiff avers that the Leave Counseling Memo “did not take into account
the fact that Plaintiff’s absence [sic] had resulted largely from three operations and asthma
attacks.” Pl.’s Response to Def.’s Statement of Material Facts not in Genuine Dispute (“Pl.’s
SMF”) ¶ 4, ECF No. 59-2.
5
Mongelli interpreted this requirement as referring to “[t]he original signed copy that’s in ink” of any medical
documentation supporting requested sick leave. Def.’s Reply Pl.’s Opp’n Def.’s Mot. (“Def.’s Reply”) Ex. 2 at
290:2, ECF No. 62-2.
3
Beginning in March 2007, the plaintiff experienced pain in her right hand and wrist. See
Def.’s Statement of Material Facts Not in Genuine Dispute (“Def.’s SMF”) ¶ 8, ECF No. 55;
Pl.’s SMF ¶ 8. OJP was first alerted to the plaintiff’s symptoms when she submitted a note from
her doctor stating she was “totally incapacitated” from March 23 through March 30, 2007.
Def.’s Mot. Ex. 20 at 4, ECF No. 56. 6 That period of total incapacitation was later extended
through April 16, 2007, after the plaintiff submitted another note from her physician. Def.’s
Mot. Ex. 21 at 6, ECF No. 56. The plaintiff returned to “light duty status lifting no more than 5
pounds” on April 17, 2007, Def.’s Mot. Ex. 22 at 8, ECF No. 56, but was prohibited from
“keyboarding” from May 4 through May 8, 2007, Def.’s Mot. Ex. 23 at 10, ECF No. 56. The
record indicates that the plaintiff had no restrictions on her work from May 9, 2007 through June
29, 2007, when the plaintiff submitted a physician’s note stating the plaintiff had “Right Carpal
Tunnel Syndrome” and she was “to avoid using the keyboard for the next 30 days.” Def.’s Mot.
Ex. 24 at 12, ECF No. 56. Thus, the plaintiff provided documentation of temporary work
restrictions covering March 23, 2007 through May 8, 2007, and June 29, 2007 through July 29,
2007. See supra.
On July 3, 2007, OJP’s Reasonable Accommodations Coordinator, Phillip Merkle,
“informed Plaintiff of her right to request a reasonable accommodation.” Pl.’s SMF ¶ 11. Three
days later, the plaintiff left a voicemail for an OJP human resources representative, indicating
that she “had spoken with her doctor, and he is recommending that [the plaintiff] wait until all of
her test results are in and [her doctor] has reviewed them before she completes the reasonable
accommodation documentation.” Def.’s Mot. Ex. 25 at 7, ECF No. 55-20. The plaintiff avers
that her doctor told her that “he would be unable to make [the] assessment” as to whether her
6
The defendant filed several exhibits in a single, sealed document at ECF No. 56. Page number citations in that
combined set of exhibits reference the ECF page number, not the page number of the individual exhibit.
4
condition was “long-term or permanent” until after the plaintiff had been seen by a specialist.
Pl.’s SMF ¶ 12.
Nine days prior to the expiration of her keyboarding restrictions, on July 20, 2007, the
plaintiff received a memorandum from her supervisor advising the plaintiff that she was not
“expect[ed] to report back to work until your doctor indicates that you can resume your full
duties and responsibilities.” Def.’s Mot. Ex. 26 at 2, ECF No. 55-21. The memorandum advised
the plaintiff that OJP would approve accrued leave or leave without pay (“LWOP”), but not
advance leave, due to [the plaintiff’s] negative leave balance.” Pl.’s SMF ¶ 13. The plaintiff
signed the memorandum to acknowledge receipt, but wrote along with her signature that “[t]he
information contained in this memorandum is not accurate.” Def.’s Mot Ex. 26 at 2. Pursuant to
the memorandum directing the plaintiff to advise her supervisor “within five (5) calendar days”
of any information “which [the plaintiff] believe[d would] assist [OJP] in the review of this
matter,” id., the plaintiff “wrote a memo to her supervisor, Ms. Mongelli, indicating that her 30-
day keyboarding restriction was to expire on July 28, 2007, and [the plaintiff] anticipated ‘being
able to fully resume all of [her] duties’” as of that date, Pl.’s SMF ¶ 14. Following the expiration
of the plaintiff’s total keyboarding restriction, the plaintiff “submitted a doctor’s note, dated July
30, 2007, indicating that [the plaintiff] ‘will be able . . . to return to work . . . with restrictions’
and that she ‘(1) use a brace [and] (2) keyboard 4 hours/day with breaks every hour of typing for
5 minutes.’” Pl.’s SMF ¶ 16; see Def.’s Mot. Ex. 27 at 14, ECF No. 56. 7
7
While OJP invited the plaintiff to request reasonable accommodation in early July, Pl.’s SMF ¶ 11, this request
was not forthcoming until August 1, 2007, when the “[p]laintiff submitted a Reasonable Accommodation Request
form regarding her right hand condition to Mr. Merkle.” Pl.’s SMF ¶ 17. The next day, Merkle requested, in an
email to the plaintiff dated August 2, 2007, additional information from the plaintiff’s physician because the
plaintiff’s request for reasonable accommodation “lack[ed] the specificity required to make a determination in [the
plaintiff’s] case.” Def.’s Reply Ex. 4 at 2, ECF No. 62-4. Subsequent emails between Merkle and the plaintiff
indicate that Merkle did not receive the requested information in a timely manner. See id. at 11 (Merkle informing
plaintiff in emails in October 2007, that he still needed the documents he requested in August 2007); id. at 18
(Merkle stating in email to plaintiff, dated January 18, 2008, that he “wanted to touch base with [the plaintiff] as
5
The plaintiff underwent carpal tunnel release surgery in January 2008 and returned to
work six months later, in July 2008. Compl. ¶¶ 205, 207. While the plaintiff was recuperating
from surgery, OJP rearranged the plaintiff’s office furniture and installed an ergonomic
keyboard. See Pl.’s Opp’n Ex. 7 at 12, ECF No. 59-12. OJP personnel also researched and
installed voice activated software on the plaintiff’s computer. Def.’s Reply Ex. 5 at 3–6, ECF
No. 62-5. Less than a month after the plaintiff returned to work, the plaintiff once again went
out on medical leave for four weeks because she was “physically unable to work at all.” Pl.’s
Opp’n Ex. 34, at 1, ECF No. 59-33.
B. Alleged Discriminatory And Retaliatory Incidents
The five OJP actions, see supra at 2, underlying the plaintiff’s claims are related
primarily to conduct alleged to have occurred between March and August 2007, during which
time the plaintiff was absent from work for approximately thirty percent of the possible work
days. 8 The alleged conduct is detailed below.
1. Holding Plaintiff Responsible For Co-Workers’ Assignments (April–
June 2007)
The plaintiff claims that she was held responsible for her co-workers’ assignments,
known as “closeouts.” Compl. ¶¶ 104–107; 125–128. The plaintiff was originally assigned to
review two co-workers closeouts but, when she was out on leave in March and April of 2007, the
plaintiff’s supervisor reassigned those duties to Wendy Lynch, who is Asian-American. Pl.’s
almost three months have passed since I last heard from you regarding your request for reasonable accommodation
related to your wrist. I am prepared to consider your request as soon as you can provide the information requested . .
. .”).
8
This percentage is determined by calculating the number of working days on which the plaintiff was totally
prohibited from working, according to her doctor’s or her supervisors’ orders, as provided in the parties’ exhibits,
and dividing that number into the total number of working days between March 23, 2007, when the plaintiff first
submitted documentation of being unable to work, and July 29, 2007, when the plaintiff’s total keyboarding
restriction was lifted. The number of days on which the plaintiff was absent is likely higher, given that some of the
parties’ exhibits refer to absences not related to her medical condition. See Pl.’s Opp’n Ex. 25 at 2–3, ECF No. 59-
26.
6
Opp’n Ex. 4 at 19, ECF No. 59-9. The plaintiff states that on June 25, 2007, she received an e-
mail from Mongelli stating “that the reassignment of review responsibilities [away from the
plaintiff] was only for the duration of [the plaintiff’s] absence,” and instructed the plaintiff to
resume reviewing one of her co-worker’s closeouts. Id. at 20. The plaintiff alleges that neither
she nor her co-workers were informed of this arrangement before June 25, 2007, and that one
closeout reassigned to the plaintiff for review should have been reviewed by Lynch. See id. at
19–20. The plaintiff avers that this reassignment of work was an example of discrimination and
the creation of a hostile work environment based on race because other people in similar
circumstances, particularly Lynch, were not treated the same way in similar circumstances. Id.
2. Assigning Work In A Discriminatory Manner (June 2007)
The essence of the plaintiff’s work assignment discrimination claim is that the plaintiff’s
supervisor “had a different expectation” of Lynch “than she did for Plaintiff in similar
situations.” Pl.’s Mem. Supp. Pl.’s Opp’n Def.’s Mot. (“Pl.’s Opp’n Mem.”) at 28, ECF No. 59-
1. The plaintiff avers that Mongelli “discriminated against [her] based on [her] race and
disability in assigning [her] the First Quarter Excess Cash project and expecting [her] to do it in
June when [she] was under a medical keyboarding restriction,” but physically present at work.
Pl.’s Opp’n Ex. 1 ¶ 9, ECF No. 59-5. 9 The plaintiff was originally assigned this project on
February 23, 2007 by Mongelli, Pl.’s Opp’n Ex. 36 at 51:11-14, ECF No. 60-1, but it was
reassigned to a co-worker, Max Mirin (“Mirin”) on April 4, 2007, id. at 52:20–53:2. Mongelli
asserts that “[b]y the end of May, it became clear that [Mirin] was not experienced and familiar
enough with the project to successfully complete it,” Def.’s Mot. Ex. 14 at 3, ECF No. 55-14.
9
The First Quarter Excess Cash project (“Excess Cash Project”) involved reviewing the “financial status reports that
grantees have submitted for the most current quarter end and comparing that to the amount of money that they have
drawn down off of the [sic] their grant to determine if their expenditures equal or exceed their draw downs.” Pl.’s
Opp’n Ex. 36 at 51:21–52:5, ECF No. 60-1.
7
On June 9, 2007, the plaintiff participated in a meeting where she was informed that “the first
quarter ’07 excess cash report had never been completed,” Pl.’s Opp’n Ex. 36 at 58:1-2, and the
plaintiff contends that she learned via e-mail in late June that the project had been returned to
her. Id. at 58:3-8. The Excess Cash Project was to be completed by August 9, 2007, but the
plaintiff states she was unable to complete the project by the deadline due to her keyboarding
restriction. See id. at 62:18–63:9.
The plaintiff alleges that she should not have been reassigned the Excess Cash Project
and notes that Lynch “was assigned the second and the third quarter excess cash report project
[and] went out on leave during both of those projects . . . [h]er project was reassigned to
someone else, and was never given back to her when she returned from her vacation.” Id. at
63:9-16. According to the plaintiff, other employees completed Lynch’s assignments, though
she offers no evidence other than her own statements and assertions of to whom the reports were
reassigned for this contention. See id. at 64:7–67:5. Mongelli, who assigned the projects to both
the plaintiff and Lynch, disputes this assertion, stating that Lynch was held responsible for
completing her excess cash projects despite the leave she took, and that Lynch “finished [the
projects] before she went – before she left. She came in on the weekend before.” Def.’s Mot.
Ex. 16 at 191:22–192:7, ECF No. 55-16. 10 The plaintiff contends that the reassignment of the
first quarter project back to the plaintiff was an instance of Mongelli’s attempt “to make [the
plaintiff’s] working atmosphere adverse and hostile,” Pl.’s Opp’n Ex. 36 at 68:6-7, since
10
Mongelli also notes that when Lynch took leave she was not subject to a leave counseling memo and she had a
large amount of accumulated sick and annual leave available. Def.’s Mot. Ex. 16 at 190:1-15. An affidavit from the
director of OJP’s Human Resources division further confirms that Lynch had over three hundred hours of
accumulated annual and sick leave available between May and September of 2007, while the plaintiff never
accumulated more than eleven hours of annual leave and owed at least sixty-six hours of sick leave during the same
period. Def.’s Mot. Ex. 45 ¶¶ 2–6, ECF No. 55-26.
8
Mongelli expected the plaintiff to fail to complete the project on time and Mongelli “could [then]
take adverse action against [the plaintiff],” id. at 68:7-12, for the failure.
3. Denying Advance Sick Leave (March to July 2007)
The plaintiff states that she was allowed to take regular leave as she accrued it, Def.’s
Mot. Ex. 12 at 98:10-12, ECF No. 55-12, but cites several instances of being denied advance
sick leave as support for her contentions that she was discriminated against, subjected to a hostile
work environment, and retaliated against on the basis of her alleged disability. DOJ has a formal
written policy outlining the requirements for requesting and granting advance sick leave, Def.’s
Mot. Ex. 35, ECF No. 55-27, and that policy is explained first, before discussing the specific
instances challenged by the plaintiff.
a) DOJ’s Advance Sick Leave Policy
Under DOJ’s leave policy, an employee generally “must submit a request for advance
sick leave as far in advance of the requested period of absence as possible,” though allowances
can be made “[i]n the event of injury or sudden illness” when “advance sick leave may be
granted after the fact provided the employee submits any documentation required in support of
the request within the time frame established by the approving official.” Def.’s Mot. Ex. 35 ¶
34(b)(1). Specifically, an employee “must submit the following: (a) A Standard Form 71,
Application for Leave. (b) A medical certificate or other administratively acceptable evidence
substantiating the reason(s) for the absence. (c) Such additional documentation as the
Department component or approving official may prescribe.” Id. ¶ 34(b)(2).
The policy states that “[e]mployees do not have a vested right to advance leave,
regardless of the circumstances, and the approval of requests for advance sick leave is at the
discretion of the approving official.” Id. ¶ 34(c)(1). Approving officials are to consider
enumerated factors before granting such leave, including: “(a) Whether the employee can be
9
expected to return to duty. (b) The need for the employee’s services. (c) The benefits in retaining
this employee. (d) The fact that, if the employee separates because of disability or illness
(whether by retirement or resignation), the Department has no authority to require repayment of
the amount paid to the employee for advance leave.” Id. The ultimate decision is “entirely up to
the discretion of the supervisor.” Pl.’s Opp’n Ex. 10 at 53:11-12, ECF No. 59-15. “Approving
officials may not grant advance sick leave” if the employee “has indicated an intention to resign
for disability[;]” “a separation date has been established which would preclude the employee
from earning enough leave to repay the advance sick leave[;]” or “there is other evidence that the
employee will not return to duty.” Def.’s Mot. Ex. 35 ¶ 34(c)(2).
In the plaintiff’s division, the plaintiff’s second line supervisor, Suttington, set additional
requirements for granting advance sick leave, noting that (1) “[a]ny request for advance leave
must be authorized by the [Chief Financial Officer][;]” (2) the leave “must be requested in
advance[;]” (3) the “request for advance leave should be written and include the time period for
the leave[;]” (4) “[a]dequate documentation should be attached to support the request, e.g.,
physician’s note justifying the need for leave[;]” (5) the “employee’s advance sick leave balance
cannot exceed -240 hours;” and (6) “[a]dvance annual leave is limited to the amount that the
employee earned and [could] payback [sic] by the end of the year, i.e., the projected year end
balance cannot be less than zero.” Def.’s Mot. Ex. 36 at 2, ECF No. 55-28.
b) The March 2007 Denial
On March 23, 2007, the plaintiff submitted a request for advance sick leave, along with a
doctor’s note stating she was totally incapacitated. See Def.’s Mot. Ex. 20 at 4. In an email
exchange between Mongelli and OJP’s Human Resources (“HR”) division, Mongelli advised
that she received “a leave slip for Advanced [sic] Sick Leave dated 3/23” from the plaintiff,
along “with some documentation. The documentation is NOT an original document.” Pl.’s
10
Opp’n Ex. 16 at 4, ECF No. 59-20 (capitalization in original). Mongelli told the HR personnel in
the email that “[t]here are work assignments that could be completed without keyboarding,” and
that Mongelli did not plan to approve any “leave at all based on this request.” Id. Mongelli was
instructed by HR to record the plaintiff’s leave as leave-with-out-pay LWOP, and recommended
that Mongelli “provide [the plaintiff] with a leave restriction letter based on her continued pattern
of leave abuse.” Pl.’s Opp’n Ex. 19 at 4, ECF No. 59-22.
c) The April 2007 Denial
On April 2, 2007, Mongelli informed a DOJ HR specialist, Veronica (Tina) Hudson via
email that the plaintiff “plan[ned] to come in [that day] just long enough to drop off paperwork
for the Leave Bank program” and that the plaintiff would “be out 2 more weeks.” Pl.’s Opp’n
Ex. 19 at 3, ECF No. 59-22. Mongelli requested a meeting with the plaintiff to discuss the
request. Id. At the meeting, which the plaintiff attended with a representative from her union,
Mongelli “advised [the plaintiff] that [she] needed to come to work because [Mongelli] was not
willing to advance [the plaintiff] leave.” Pl.’s Opp’n Ex. 36 at 99:12-15, ECF No. 60-2.
The plaintiff alleges that during this meeting, Mongelli told the plaintiff “there was plenty
of work that could be done without” requiring the plaintiff to use a keyboard. Id. at 100:1-3.
Mongelli avers that the plaintiff’s “union rep recommended that as a compromise, [the plaintiff]
come in for 1/2 days beginning today [April 3, 2007]. [Mongelli] agreed.” Pl.’s Opp’n Ex. 19 at
2. The plaintiff alleges that Mongelli “stated she would provide [the plaintiff] with a list of
written duties that [she] could do that didn’t require the use of [her] hand,” but she was never
provided with the requested list. Pl.’s Opp’n Ex. 36 at 101:2-8.
The next day, the plaintiff stated that she visited “personnel and once they reviewed [her]
doctor’s notes ordering [the plaintiff] to remain home [and] stating [she] was totally
incapacitated” that the personnel office advised the plaintiff’s supervisors that it was a “risk and
11
a liability” for the plaintiff to remain at work. Id. at 100:10-21. The plaintiff avers that her
second-line supervisor, Suttington, informed her at the end of the working day on April 3, 2007
“that [the plaintiff] should not be at work, and [the plaintiff] should go home and remain home
until [she] was cleared by [her] doctor.” Id. at 105:15-20. Subsequently, Mongelli denied the
plaintiff’s request for eighty hours of advance sick leave for the period from April 2 through
April 13, 2007, citing the plaintiff’s negative sick leave balance and available annual leave
balance of .25 hours. Pl.’s Opp’n Ex. 20 at 2, ECF No. 59-23. The plaintiff’s absence was
charged to leave without pay. Id.
d) The July 2007 Denial
From June 29, 2007 to July 29, 2007, the plaintiff was under doctor’s orders to avoid
keyboarding. 11 See supra Part I.A. The plaintiff worked under this restriction, reviewing
Mirin’s work, until July 20, 2007, when the plaintiff was given a memorandum from Mongelli,
Def.’s Mot. Ex. 26, instructing the plaintiff “to go home until [she] could perform [her] duties
100 percent,” Pl.’s Opp’n Ex. 36 at 27:20–28:15. The memorandum stated that the plaintiff’s
“inability to use the keyboard render[ed her] unable to perform 85% of the duties and
responsibilities of [her] position,” and further stated that the reviewing tasks the plaintiff had
been performing “are but a small part of [the plaintiff’s] regular work assignments.” Def.’s Mot.
Ex. 26 at 2. Moreover, the memo stated that the plaintiff’s “primary work assignments [were] to
process closeouts” and that she had “closed 176 of the 531 closeouts assigned” to her since April
11
The plaintiff cites an email between Suttington and Mongelli in July 2007 as evidence of the alleged hostile work
environment. Pl.’s Opp’n Mem. at 12. Suttington wrote in an email to Mongelli that Suttington “believe[d] that this
issue has gotten out of control. So, why do we bother to try to appease [the plaintiff]? [The plaintiff] is going to
blame us for all of her issues anyway and she is probably not going to be that productive in the work place.” Pl.’s
Opp’n Ex. 29 at 2, ECF No. 59-29.
12
2007, which was substantially less that the “3 to 5 [closeouts] per day” a GS-13 staff accountant
such as the plaintiff was expected to complete. Id.
The memorandum stated that the plaintiff’s “inability to produce at the average GS-13
level and [her] dependence on other staff members [was] affecting the ability of the Branch to
meet its goals.” Id. at 3. Consequently, OJP was “not willing to approve any requests for
advance sick or advance annual leave due to [the plaintiff’s] current leave status.” Id. at 3. This
did not mean that the plaintiff was not allowed to take any leave; the memorandum indicated that
OJP would “approve any request . . . to use any accrued sick or annual leave or to use leave
without pay (LWOP) to cover [the plaintiff’s] absences through the end of the remaining 30 day
period,” and that the plaintiff could apply for two voluntary leave bank donor programs or leave
under the FMLA. Id. (emphasis added). The plaintiff was afforded the opportunity to provide
“within five (5) calendar days from” July 20, 2007, the date of the memorandum, “any additional
information, including documentation from [her] doctor, which [she] believe[d would] assist
[DOJ] in the review of” her status, if the plaintiff did not agree with the memorandum’s
assessment. Id.
Three days after receiving the memorandum alerting her that no requests for advance sick
leave would be approved, the plaintiff nonetheless submitted, on July 23, 2007, a request for
advance sick leave, Def.’s Mot. Ex. 30 at 2, ECF No. 55-23, which was denied, Pl.’s Opp’n Ex.
36 at 32:12-14. 12
e) The Plaintiff’s Belief That Advance Sick Leave Denials Were
Discriminatory
The plaintiff alleges that the denial of her advance sick leave requests was discriminatory
because “there were others that were being advanced leave or there were [sic] speculation that
12
The plaintiff avers that she was advised to make the request by her union representatives. Pl.’s Ex. 36 at 32:8-12.
13
others were being advanced leave,” who were not African-Americans. See Pl.’s Opp’n Ex. 3 at
92:19–93:1, ECF No. 59-8. The plaintiff does not identify who these “others” were, stating that
she “didn’t go to the non-African Americans to say are you getting advanced leave, you know,
was yours advanced, but because people’s business never stayed personal in our office,
somewhere along the line, somebody, whether it was the time keeper or somebody in the front
office, would say well so and so just got their leave approved, but this one’s leave was denied.”
Id. at 93:2-10. The plaintiff stated that she obtained the information supporting this allegation
“secondhand” and not “from the source,” id. 93:18-24, and was unable to name any co-workers
who had their advance leave requests denied, id. at 95:5-17.
4. Charging Plaintiff With Tardiness (2007 generally)
The plaintiff claims that she was racially discriminated against because she was forced to
take leave if she arrived to work late, while other employees were given a fifteen minute “grace
period” after their scheduled start times. See Pl.’s Opp’n Ex. 3 at 99:1-18. Specifically, the
plaintiff claims that if she failed to arrive at work by 8:00 a.m., Mongelli would require her to
submit a leave slip for the time period between 8:00 a.m. and 8:15 a.m. See id. at 101:6-23. The
plaintiff named three non-African-American employees in the customer service branch who were
not required to submit leave slips in similar circumstances. See id. at 102:1–104:24. The
plaintiff avers that this state of affairs ended after the plaintiff returned from her carpal tunnel
release surgery in 2008. Id. at 111:8-13.
5. The Alleged Assault (August 14, 2007)
A portion of the plaintiff’s hostile work environment and retaliation claims, based on race
and disability, pertains to an August 14, 2007 incident, in which the plaintiff claims she was
assaulted and battered by Mongelli. See Pl.’s Opp’n Mem. at 15–17. No witnesses to this
incident, aside from the plaintiff and Mongelli, are identified. See Pl.’s Opp’n Ex. 36 at 85:16-
14
19. The investigator assigned to resolve the matter wrote that his “analysis of the incident is
inconclusive.” Def.’s Mot. Ex. 41 (Report of Investigation (“Inv. Rep.”)) at 2, ECF No. 55-33.
On the morning of August 14, 2007, Mongelli and the plaintiff sent each other a series of
emails regarding an alleged inaccuracy in the plaintiff’s leave slips. See id.; Pl.’s Opp’n Ex. 9 at
203:21–205:12, ECF No. 59-14. At approximately 12:30 p.m., Mongelli went to the plaintiff’s
cubicle to discuss the matter with her. Inv. Rep. at 2; see Pl.’s Opp’n Ex. 9 at 205:6-15; Pl.’s
Opp’n Ex. 36 at 77:15-18. Mongelli states she was frustrated with the plaintiff at the time,
walked into the plaintiff’s cubicle unannounced, looked over the plaintiff’s shoulder, saw that the
plaintiff was composing an e-mail, and said “More e-mails.” Pl.’s Opp’n Ex. 9 at 206:2-10; id.
at 207:12–208:6; Pl.’s Opp’n Ex. 4 at 24.
“At this point, the parties do not agree about what happened next.” Inv. Rep. at 2.
According to Mongelli, the plaintiff became angry and told Mongelli “she was sick of [Mongelli]
walking in on [the plaintiff] and that [the plaintiff] wanted [Mongelli] to announce herself.” Pl.’s
Opp’n Ex. 9 at 210:5-12. Mongelli states the plaintiff then said she was “sick of it and she was
going to go to EEO right now.” Id. at 210:11-19. At that point, according to Mongelli, the
plaintiff stood up, pushed her chair back, and “bammed into” Mongelli, causing Mongelli to
“rock[] to the side of the cubicle” while the plaintiff “barged right on out the door.” Id. at
212:10-14. Mongelli states that the plaintiff did not climb over a chair to leave her cubicle and
that she did not block the plaintiff’s exit. Id. at 215:10-19.
The plaintiff alleges that she and Mongelli exchanged words over whether Mongelli
should knock before entering the plaintiff’s cubicle, Pl.’s Opp’n Ex. 36 at 78:10-16, after which
the plaintiff states she stood up and “said well, [she was] going to make a complaint to EEO.
[She was] going to make another complaint.” Id. at 78:16-18. The plaintiff alleges, Mongelli
15
stepped back, but did not clear a path for the plaintiff to move through the entry to her cubicle.
Id. at 78:18-20, causing the plaintiff to say “excuse me” and “climb[] over [her] guest chair” to
exit the cubicle. See id. at 78:20–79:1. At that point, the plaintiff alleges, Mongelli “went to
block [her] to prevent [her] from leaving and pushed [her], bumped into [her] and bumped [her]
into the wall.” Id. at 79:2-5. The plaintiff asserts that she had to grab the wall to keep from
falling. Id. at 79:6-7. The DOJ investigator assigned to the case states that neither woman was
“physically harmed” by the incident and, due to the small size and cluttered nature of the
plaintiff’s work area, “it would be difficult for the occupant to leave without touching the visitor
regardless of intent.” Inv. Rep. at 3. The investigator noted that the plaintiff and Mongelli were
each “convinced that [the incident] was an intentional action on the part of the other.” Id.
The official report of the incident from the Federal Protective Service states, based on
interviews of both Mongelli and the plaintiff, that “it has been determined that there was never
an assault that had ever occurred on either individuals [sic] part. This case is closed due to no
criminal activity.” Def.’s Mot. Ex. 42 at 6, ECF No. 55-34.
The plaintiff describes this incident as “workplace violence” and alleges that her
supervisor was retaliating against her for the plaintiff’s EEO activity, about which Mongelli had
recently become aware. See Pl.’s Opp’n Ex. 36 at 84:1-7. Specifically, the plaintiff alleges that
Mongelli became aware of her EEO activities on August 7, 2007 when a union representative
forwarded an email to Mongelli mentioning the plaintiff’s activities. See Pl.’s Opp’n Ex. 31
(email, dated Aug. 7, 2007, between plaintiff and union representatives forwarded to Mongelli
and Suttington) at 5, ECF No. 59-31 (mentioning “discussions [the plaintiff] . . . had with EEO
(re: discrimination complaint) and Personnel (re: reasonable accommodation form and workers
16
comp for my hand).”). 13 The plaintiff claims that the DOJ’s failure to discipline Mongelli was,
at least partially, due to the plaintiff’s race. See Pl.’s Opp’n Ex. 3 at 208:4-25 (“[I]f the situation
had been reversed, if [the plaintiff] were the one to assault [Mongelli], action would have been
taken against [the plaintiff].”).
C. The Plaintiff’s EEO Complaint
The plaintiff initiated the EEO Complaint process on July 25, 2007 “by contacting the
OJP’s Equal Employment Opportunity (“EEO”) Office.” Pl.’s SMF ¶ 32. The complaint was
apparently triggered by the July 20, 2007 memorandum in which the plaintiff was advised that
she would not be granted advance sick leave and that she was not allowed to return to work until
she could perform all of her duties. Def.’s Mot. Ex. 1 at 1, ECF No. 55-1 (EEO Counselor’s
Report, Oct. 19, 2007, referring to July 20, 2007 memorandum requiring use of leave for
remaining time period when plaintiff could not use keyboard); 14 see supra Part I.B.3.d. The
EEO Counselor’s report describes the plaintiff’s “Specific Allegation(s)” as being that “the
agency discriminated against her because of her race (Black), and physical disability (Carpal
Tunnel Syndrome), when she was subjected to a hostile work environment and time and
attendance issues.” Id. at 1. Two specific incidents were cited: the July 20, 2007 memorandum
“requiring [the plaintiff] to use sick or annual leave, or to use leave without pay (LWOP) to
cover absences associated with the 30-day no keyboarding restriction invoked by her physician,”
13
The plaintiff cites the same email exchange as evidence of a “sarcastic[]” response by Mongelli in relation to the
plaintiff’s EEO complaint, quoting Suttington’s question: “So, who is discriminating against [the plaintiff]?” and
Mongelli’s response: “All I know is what I see in the email. I hope it’s me . . . .” Pl.’s Opp’n Mem. at 15. The
plaintiff truncates the quotation and, consequently, takes the statement out of context. Mongelli’s full response was
“I hope it’s me, because I am equally riding all staff about their leave and their workload so I can unequivocally
state that I’m giving everyone nervous breakdowns equally.” Pl.’s Opp’n Ex. 31 at 2.
14
The EEO Counselor’s Report lists July 25, 2007 as the “Date of Initial Contact,” but June 6, 2007 as the “Date of
Initial Interview.” Def.’s Mot. Ex. 1 at 2. Given that the first incident the Report refers to is the July 20, 2007
memorandum, id. at 1, the “June 6” date is likely a typographical error.
17
and the August 14, 2007 incident where the plaintiff “allege[d] that her 1st Line Supervisor
bumped her while existing [sic] her cubicle.” Id. 15
The plaintiff completed pre-counseling efforts without reaching a resolution of her
complaints, which resulted in her receiving a “Notice of Right to File a Discrimination
Complaint.” Pl.’s SMF ¶ 35. The plaintiff’s official “Complaint of Discrimination” was
received by the OJP’s EEO office on October 25, 2007. 16 Pl.’s Opp’n Ex. 37 (the “EEO
Complaint”) at 2, ECF No. 59-35. In her EEO Complaint, the plaintiff alleges that she was
denied “reasonable leave relating to asthma and occupational carpal tunnel syndrome;
[d]iscriminatory distribution of work assignments; [h]ostile work environment and work place
[sic] violence; and Reprisal.” Id. Not all of the issues raised in the EEO Complaint were
accepted for investigation. Pl.’s SMF ¶ 37; Def.’s Mot. Ex. 5 (Acceptance and Partial Dismissal
of Complaint of Discrimination) at 2, ECF No. 55-5. The EEO office agreed to investigate the
plaintiff’s racial and right-hand CTS disability discrimination and retaliation claims based on the
July 20, 2007 memorandum and the bumping incident. Def.’s Mot. Ex. 5 at 1. The office
initially rejected any claims based on the alleged discriminatory work assignment practices
because these claims were not raised with the EEO Counselor. Id. at 2.
The plaintiff requested reconsideration of the EEO office’s decision not to investigate
her work assignment claim. Pl.’s SMF ¶ 39; Def.’s Mot. Ex. 6 (Request for Reconsideration of
Partial Dismissed Claim) at 2, ECF No. 55-6. The OJP EEO office granted the appeal for
15
The plaintiff asserts that “the evidence shows that in [the plaintiff’s] communications with the EEO counselor, she
discussed not only the matters contained in the quoted segment, but also her claims of discriminatory work
assignment and failure to accommodate her asthma disability.” Pl.’s SMF ¶ 33. While the EEO Counselor’s Report
references the plaintiff’s claims regarding her asthma, which are no longer at issue in this case, see Pl.’s Opp’n at 2
n.1, no mention is made of the plaintiff’s discriminatory work assignment claims, see generally Def.’s Mot. Ex. 1.
16
The Complaint of Discrimination contains, in box 10 for “Date of This Complaint,” the date October 26, 2007, but
the document is stamped “Received” by the OJP/EEO Office on October 25, 2007. See Def.’s Mot. Ex. 4 at 2, ECF
No. 55-4. This discrepancy is not material to the resolution of the instant motion.
18
investigative purposes and added the plaintiff’s “claim of racially discriminatory assignment of
work,” based on the August 2, 2007 reassignment of the Excess Cash Project back to the
plaintiff, in light of the plaintiff’s allegation that “work assignments are permanently reassigned
for non African-Americans.” Pl.’s SMF. ¶ 40; Def.’s Mot. Ex. 7 (Amended Acceptance Notice
of Complaint of Discrimination) at 1, ECF No. 55-7.
On April 29, 2010, the DOJ’s Complaints Adjudication Office issued its Final Agency
Decision (“FAD”) as requested by the plaintiff. Pl.’s SMF ¶ 43; Def.’s Mot. Ex. 11 (“FAD”),
ECF No. 55-11. The FAD denied (1) the plaintiff’s discriminatory work assignment claim,
without reaching the merits, because this claim was not discussed with the EEO Counselor at the
informal complaint stage and was not “like or related to” the plaintiff’s original complaint, FAD
at 23; and (2) the plaintiff’s claims based on the bumping incident and the July 20, 2007
memorandum, on the merits, upon finding that the DOJ had not engaged in discriminatory
conduct, id. at 5–13.
D. Procedural History
The plaintiff filed the instant action on August 2, 2010, 17 ECF Docket Entry 1 (noting
date of filing as August 2, 2010), accompanied by a motion to accept the complaint as being
timely filed on July 30, 2010, see generally Pl.’s Mot. Accept Her Compl. As Filed On July 30,
2010, ECF No. 2. The plaintiff mistakenly believed she could not file her complaint in the night
drop box for the District Court. See id. at 3. The defendant opposed the plaintiff’s motion and
subsequently filed a motion to dismiss based on the untimeliness of the complaint. See generally
Def.’s Mot. Dismiss, ECF No. 6. Since the plaintiff’s opposition referenced material outside of
the pleadings, the Court notified the parties that the defendant’s motion to dismiss would be
17
The case was reassigned to the undersigned Judge on January 21, 2011.
19
treated as a motion for summary judgment, pursuant to Federal Rule of Civil Procedure 12(d).
See Minute Order, Aug. 9, 2011.
Following the submission of additional material in response to the Court’s Order, the
Court denied the defendant’s motion to dismiss and granted the plaintiff’s motion in part and
denied it in part, 18 equitably tolling the time to file the plaintiff’s complaint until August 2, 2010,
making the complaint timely. See Order at 1, ECF No. 14; Smith v. Holder, 806 F. Supp. 2d 59,
64 (D.D.C. 2011).
The complaint alleges four counts: “Race Discrimination-Hostile Work Environment”
under Title VII, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-16, Compl. ¶¶ 240–47 (Count I); “Disability
Discrimination” under the Rehabilitation Act, 29 U.S.C. § 791, Compl. ¶¶ 248–59 (Count II);
Retaliation under Title VII, 42 U.S.C. § 2000e-3(a), Compl. ¶¶ 260–70 (Count III); and
Retaliation under the Rehabilitation Act, 29 U.S.C. § 791, Compl. ¶¶ 271–78 (Count IV). The
plaintiff seeks (1) “A declaratory judgment that the [defendant] discriminated and retaliated
against plaintiff[;]” (2) reassignment to “a position elsewhere in the [DOJ] at the same grade
level she now has, in which she would not need to keyboard as much as she now does[;]” (3)
“reasonable accommodations for her disabilities[;]” (4) attorneys’ fees under the Rehabilitation
Act; (5) $300,000 in compensatory damages “for emotional distress and aggravation of her
disabilities[;]” and (6) “Restoration of 251 hours of leave which the [defendant] denied plaintiff
between 2007 and 2008. 19
18
The plaintiff’s motion was denied insofar as it requested that the Court “accept the Complaint as timely filed on
July 30, 2010,” since “the Complaint was not filed on that date,” Smith v. Holder, 806 F. Supp. 2d 59, 64 n.4
(D.D.C. 2011), and the plaintiff’s alternative request for equitable tolling until August 2, 2010, that date on which
the Complaint was filed, was granted, id. at 64.
19
The plaintiff has withdrawn her demand for a “within-grade increase to make up for the delay of her within-grade
increase in March 2008” and restoration of the plaintiff’s leave and retirement computation dates. See Pl.’s Opp’n
Mem. at 26. Although the plaintiff states she made these claims in paragraphs 244(f) and (g) of the complaint, Pl.’s
Opp’n at 26, she expressly states that she is still pursuing the restoration of leave she demands in paragraph 244(f).
See id. Thus, the Court construes the plaintiff’s withdrawal as pertaining to paragraphs 244 (g), (h), and (i) of the
20
After the Court’s ruling on the defendant’s initial motion to dismiss, the parties engaged
in a protracted discovery and negotiation process, including two extensions of time for the
defendant to file an answer, Minute Orders, Aug. 31, 2011 and Sept. 15, 2011; three settlement
conferences before a Magistrate Judge, Minute Entries, Nov. 10, 2011, Nov. 17, 2011, Nov. 30,
2011; four extensions of time to the agreed upon initial briefing schedule for dispositive motions,
see Minute Orders Dec. 23, 2011, Jan. 10, 2012, Jan. 23, 2012, Feb. 7, 2012; five extensions of
the deadline for discovery, see Minute Orders Mar. 16, 2012, May 30, 2012, Aug. 31, 2012, Nov.
5, 2012, Dec. 5, 2012; a referral for alternative dispute resolution, Minute Order, Mar. 8, 2013;
and another extension of time to file responses to renewed dispositive motions, Minute Order,
June 7, 2013. The Court also allowed the parties to clarify their positions regarding the alleged
retaliatory acts on which Counts III and IV are based. Minute Order, Mar. 31, 2014. In total, the
parties engaged in well over a full year of discovery in addition to two separate attempts at
settlement and mediation. The parties’ submissions on the instant motion include ninety
exhibits, totaling over 1,200 pages, all of which have been carefully reviewed by the Court.
II. APPLICABLE LEGAL STANDARDS
A. Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Summary judgment is properly
granted against a party who, “after adequate time for discovery and upon motion, . . . fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
complaint, which all refer to automatic changes to the plaintiff’s salary and service computation dates made
“without any affirmative decision, racial or otherwise” by the defendant, pursuant to the plaintiff’s memorandum in
opposition. See id.
21
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The burden is on the moving party to demonstrate that there is an “absence of a
genuine issue of material fact” in dispute. Id. at 323. 20
In ruling on a motion for summary judgment, the Court must draw all justifiable
inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as
true. Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 255 (1986). The Court is
only required to consider the materials explicitly cited by the parties, but may on its own accord
consider “other materials in the record.” FED. R. CIV. P. 56(c)(3). For a factual dispute to be
“genuine,” the nonmoving party must establish more than “[t]he mere existence of a scintilla of
evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere
allegations” or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C. Cir.
2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154
(D.C. Cir. 1993); accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present
specific facts that would enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P.
56(c)(1); Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (noting that
at summary judgment stage, plaintiff “can no longer rest on such ‘mere allegations,’ but must
‘set forth’ by affidavit or other evidence ‘specific facts,’ . . . which for purposes of the summary
judgment motion will be taken to be true.’” (quoting Sierra Club v. EPA, 292 F.3d 895, 898–
99 (D.C. Cir. 2002)) (ellipsis and alterations in original)). “If the evidence is merely colorable,
20
When, as here, the defendant expressly moves for summary judgment in the alternative to a motion to dismiss and
relies upon extra-pleading material, to which the plaintiff has an opportunity to respond, the Court may treat the
motion as one for summary judgment without issuing a prior notice of converting the motion to dismiss into a
motion for summary judgment, as otherwise required by Federal Rule of Civil Procedure 12(d). See Colbert v.
Potter, 471 F.3d 158, 168 (D.C. Cir. 2006); see also Mount v. Johnson, 36 F. Supp. 3d 74, 81–82 (D.D.C. 2014);
Pintro v. Wheeler, 35 F. Supp. 3d 47, 52 n.5 (D.D.C. 2014) (finding prior notice of conversion unnecessary “where
the plaintiff is represented by counsel and has responded to the submission of exhibits with evidence of her own.”);
Hamilton v. Geithner, 743 F. Supp. 2d 1, 8 (D.D.C. 2010), rev’d in part on other grounds, 666 F.3d 1344 (D.C. Cir.
2012).
22
or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S.
at 249–50 (citations omitted).
“[A] complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. In that situation,
“[t]he moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party
has failed to make a sufficient showing on an essential element of her case with respect to which
she has the burden of proof.” Id. Notably, “[s]elf-serving testimony does not create genuine
issues of material fact, especially where that very testimony suggests that corroborating evidence
should be readily available.” Fields v. Office of Johnson, 520 F. Supp. 2d 101, 105 (D.D.C.
2007). Additionally, “on summary judgment, statements that are impermissible hearsay or that
are not based on personal knowledge are precluded from consideration by the Court.” Riggsbee
v. Diversity Servs., Inc., 637 F. Supp. 2d 39, 46 (D.D.C. 2009); accord FED. R. CIV. P. 56(c)(4)
(“An affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”); see also Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000) (holding that “[v]erdicts cannot
rest on inadmissible evidence” and “sheer hearsay . . . therefore counts for nothing” at summary
judgment).
“Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury,” however, “is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d
118, 123 (D.C. Cir. 2011). Particularly in a case such as this where the non-moving party relies
almost entirely upon her own generally uncorroborated statements in depositions, declarations,
and interrogatory responses to create a genuine issue of material fact, the Court must carefully
23
assess whether the plaintiff’s evidence is “merely colorable,” Liberty Lobby, 477 U.S. at 249, or
whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party,” id. at 248. The Court must review the record “taken as a whole.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 151 (2000). The Court must accept all of the non-
movant’s evidence as true and give her the benefit of all justifiable inferences. See id. at 255.
The Court “may not make credibility determinations or weigh the evidence,” Reeves, 530 U.S. at
150, as “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Id. (quoting Liberty Lobby,
477 U.S. at 255). Nevertheless, a non-movant’s allegations that “are generalized, conclusory and
uncorroborated by any evidence other than the [non-movant’s] own deposition testimony” are
“insufficient to establish a triable issue of fact”—at least where the nature of the purported
factual dispute reasonably suggests that corroborating evidence should be available. Akridge v.
Gallaudet Univ., 729 F. Supp. 2d 172, 183 (D.D.C. 2010); see also GE v. Jackson, 595 F. Supp.
2d 8, 36 (D.D.C. 2009) (observing that when a “declaration is self-serving and uncorroborated” it
is “of little value at the summary judgment stage”).
B. Title VII Discrimination Claims
Title VII of the Civil Rights Act makes it unlawful for an employer to discriminate
against any individual “because of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e–2(a)(1). Under Title VII, “the two essential elements of a discrimination
claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the
plaintiff’s race, color, religion, sex, [or] national origin.” Baloch v. Kempthorne, 550 F.3d 1191,
1196 (D.C. Cir. 2008); accord Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C.
Cir. 2008). An “adverse employment action” is “‘a significant change in employment status,
24
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits.’” Baird v. Gotbaum, 662
F.3d 1246, 1248 (D.C. Cir. 2011) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.
2009)); see also Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (“An [a]dverse
employment action . . . [entails a] tangible employment action evidenced by firing, failing to
promote, a considerable change in benefits, or reassignment with significantly different
responsibilities.”). An adverse employment action occurs if 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.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).
The Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973),
set forth a burden-shifting framework to apply in Title VII cases. Under this framework, once
the plaintiff has established a prima facie case under Title VII, “the burden of production shifts
to the employer to produce a ‘legitimate, nondiscriminatory reason’ for its action.” Solomon v.
Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014) (quoting Wiley v. Glassman, 511 F.3d 151, 155 (D.C.
Cir. 2007)); see also Hernandez v. Pritzker, 741 F.3d 129, 133 (D.C. Cir. 2013); Youssef v. FBI,
687 F.3d 397, 402 (D.C. Cir. 2012). Under the McDonnell Douglas burden-shifting framework,
“the burden shifts to the employer to articulate ‘some legitimate, nondiscriminatory reason’ for
the employment action, which the plaintiff can rebut by proving, under a preponderance of the
evidence standard, that the employer’s justification is merely pretext for discrimination.” Brown
v. Sessoms, 774 F.3d 1016, 1022–23 (D.C. Cir. 2014); see also Jones v. Bernanke, 557 F.3d 670,
678 (D.C. Cir. 2009). In other words, once an employer produces a legitimate,
nondiscriminatory reason for its action, “‘the sole remaining issue [is] discrimination . . . vel
25
non.’” Kersey v. Wash. Met. Area Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)) (first alteration in
original).
C. Rehabilitation Act Claims
“[T]he Rehabilitation Act prohibits federal agencies from engaging in employment
discrimination against disabled individuals and further requires agencies to make reasonable
accommodations for persons with disabilities unless such accommodations would impose undue
hardship on the agency.” Klute v. Shinseki, 840 F. Supp. 2d 209, 215 (D.D.C. 2012) (quoting
Nurriddin v. Bolden, 674 F. Supp. 2d 64, 82 (D.D.C. 2009)). “To determine the appropriate
reasonable accommodation, the agency should ‘initiate an informal, interactive process with the
qualified individual with a disability in need of accommodation.’” Loya v. Sebelius, 840 F.
Supp. 2d 245, 258 (D.D.C. 2012) (quoting 29 C.F.R. § 1630.2(o)(3)). “‘[A]n employer is not
required to provide an employee that accommodation [s]he requests or prefers, the employer
need only provide some reasonable accommodation.’” Id. (quoting Aka v. Wash. Hosp. Ctr.,
156 F.3d 1284, 1305 (D.C. Cir. 1998) (en banc)) (alteration in original).
To survive summary judgment on a Rehabilitation Act claim, a plaintiff must “come
forward with sufficient evidence to allow a reasonable jury to conclude that” she meets four
elements: “(i) she was disabled within the meaning of the Rehabilitation Act; (ii) her employer
had notice of her disability; (iii) she was able to perform the essential functions of her job with or
without reasonable accommodation; and (iv) her employer denied her request for a reasonable
accommodation of that disability.” Solomon, 763 F.3d at 9 (internal citations omitted).
“An individual is disabled [within the meaning of the Rehabilitation Act] if [s]he: (1) has
‘a physical or mental impairment that substantially limits one or more of [her] major life
26
activities,’ (2) has ‘a record of such impairment,’ or (3) has been ‘regarded as having such an
impairment.’” Klute, 840 F. Supp. 2d at 215 (quoting 42 U.S.C. § 12102(1)); see also 29 U.S.C.
§ 705(20)(B) (incorporating into the Rehabilitation Act the Americans with Disabilities Act’s
(“ADA”) definition of disabled individual). To be substantially limiting, “an ‘impairment’s
impact must . . . be permanent or long term.’” Klute, 840 F. Supp. 2d at 216 (quoting Haynes v.
Williams, 392 F.3d 478, 482 (D.C. Cir. 2004)).
D. Title VII Retaliation Claims
“Title VII’s anti-retaliation provision makes it unlawful for an employer ‘to discriminate
against [an] employee . . . because he has opposed any practice’ made unlawful by Title VII or
‘has made a charge, testified, assisted, or participated in’ a Title VII proceeding.” Steele v.
Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008) (quoting 42 U.S.C. § 2000e–3(a)). The Court
assesses Title VII retaliation claims under the McDonnell Douglas burden-shifting framework.
See supra Part II.B. First, the plaintiff must prove a prima facie case of retaliation by showing:
“(1) [s]he engaged in protected activity; (2) [s]he was subjected to an adverse employment
action; and (3) there was a causal link between the protected activity and the adverse action.”
Hamilton, 666 F.3d at 1357 (internal quotation marks and citation omitted). If the prima facie
case is made, the defendant must establish that the adverse employment action was “taken for a
legitimate, nondiscriminatory reason.” Youssef, 687 F.3d at 402 (quoting St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 507 (1993)). The Court then determines “whether a reasonable jury
‘could infer discrimination’” from the plaintiff’s pleadings, the defendant’s proffered
explanation, and any further rebuttal evidence or evidence of discrimination provided by the
plaintiff. Vickers v. Powell, 493 F.3d 186, 195 (quoting Aka, 156 F.3d at 1289).
27
As to the first element, protected activity encompasses utilizing informal grievance
procedures such as complaining to management or human resources about the discriminatory
conduct. Richardson v. Gutierrez, 477 F. Supp. 2d 22, 27 (D.D.C. 2007) (“It is well settled that
Title VII protects informal, as well as formal, complaints of discrimination.”); see also Bell v.
Gonzales, 398 F. Supp. 2d 78, 94 (D.D.C. 2005) (“Initiation of EEO counseling to explore
whether an employee has a basis for alleging discrimination constitutes protected activity, even
in the absence of an unequivocal allegation of discrimination.”).
A plaintiff meets the second element to show a prima facie case of retaliation if “a
reasonable employee would have found the challenged action materially adverse,” meaning that
it “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington Northern & Santa Fe Ry. Co. v. White (Burlington Northern), 548
U.S. 53, 68 (2006) (internal quotations and citations omitted). Thus, adverse actions giving rise
to retaliation claims are broader than for disparate impact claims and “are ‘not limited to
discriminatory actions that affect the terms and conditions of employment.” Baird, 662 F.3d at
1249 (quoting Burlington Northern, 548 U.S. at 64). Yet, the Court in Burlington Northern
distinguished “materially adverse” actions from “trivial harms,” “petty slights,” and “minor
annoyances.” Burlington Northern, 548 U.S. at 68. The Court also noted that “[c]ontext
matters” and “the significance of any given act of retaliation will often depend upon the
particular circumstances.” Id. at 69; see also id. (“[A]n act that would be immaterial in some
situations is material in others.”) (internal quotation marks and citation omitted).
Finally, the third element of the test requiring a causal link between the protected activity
and the adverse employment action requires “proof that the desire to retaliate was the but-for
cause of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct.
28
2517, 2528 (2013). In other words, “traditional principles of but-for causation” apply and the
plaintiff must show “that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.” Id. at 2533.
Significantly, however, even if the plaintiff establishes a prima facie case of retaliation,
dismissal may still be warranted if the defendant shows a legitimate non-discriminatory reason
for its actions. See Broderick v. Donaldson, 437 F.3d 1226, 1231–32 (D.C. Cir. 2006). Such a
legitimate reason breaks the causal connection between the first two elements and defeats a
retaliation claim. Then “the ‘central question’ in [the] case is whether [the plaintiff] has
produced sufficient evidence for a reasonable jury to find those reasons were but pretexts for
retaliation.” Hernandez v. Pritzker, 741 F.3d 129, 133 (D.C. Cir. 2013); see also McGrath v.
Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012).
E. Exhaustion of Administrative Remedies
A plaintiff may file a Title VII or Rehabilitation Act action in federal court only after
exhausting her administrative remedies before the relevant federal agency for each allegedly
discriminatory act. See Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (Title VII); Barkley
v. U.S. Marshals Serv. ex rel. Hylton, 766 F.3d 25, 34–35 (D.C. Cir. 2014) (Rehabilitation Act,
citing Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006)). Under the Rehabilitation Act, a
failure to exhaust administrative remedies is a jurisdictional defect, requiring dismissal for lack
of subject-matter jurisdiction under Rule 12(b)(1). See Spinelli, 446 F.3d at 162 (remanding case
since “[t]he district court also should have dismissed [the plaintiff’s] Rehabilitation Act claim for
lack of jurisdiction on the ground that he failed to exhaust his administrative remedy,” citing
statutory language as “mandating administrative exhaustion”); see also Barkley, 766 F.3d at 34-
35 (D.C. Cir. 2014) (noting Spinelli’s holding “that a district court lacks jurisdiction over a
29
Rehabilitation Act claim if “there was no administrative complaint [filed] and thus no final
disposition of one.” (alteration in original)). Since exhaustion of Rehabilitation Act claims “is a
jurisdictional requirement,” the plaintiff has the burden to plead and prove it. Dick v. Holder,
No. 13-1060, 2015 WL 691189, at *4 (D.D.C. Feb. 19, 2015). 21
By contrast, “Title VII’s exhaustion requirements are not jurisdictional.” Artis v.
Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011) (citations omitted). “Accordingly, a
12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted is the
appropriate vehicle to challenge an alleged failure to exhaust administrative remedies under Title
VII.” Mahoney v. Donovan, 824 F. Supp. 2d 49, 58 (D.D.C. 2011) (internal quotation marks and
citations omitted). “Because untimely exhaustion of administrative remedies is an affirmative
defense, the defendant bears the burden of pleading and proving it.” Bowden v. United States,
106 F.3d 433, 437 (D.C. Cir. 1997) (citation omitted). “In other words, odd as it may seem,
Defendants carry the burden of proof under Title VII while Plaintiff bears that burden under the
Rehabilitation Act.” Mahoney, 824 F. Supp. 2d at 58.
The procedures governing administrative processing of discrimination complaints
brought by employees of the federal government under the Title VII and the Rehabilitation Act
are set forth in 29 C.F.R. Part 1614 (Federal Sector Equal Employment Opportunity). See 29
C.F.R. § 1614.105. These regulations require an employee to “consult a[n EEOC] Counselor
prior to filing a complaint in order to try to informally resolve the matter.” Id. § 1614.105(a).
21
Another Judge in this District has noted that “Spinelli’s holding that exhaustion is jurisdictional under the
Rehabilitation Act comes into tension with the Supreme Court’s decision in Arbaugh, which explained that without
a clear statement in the statute labeling a limitation as jurisdictional, courts should presume that such limitation is
not jurisdictional.” Dick, 2015 WL 691189, at *4 n.8 (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 515–16
(2006)). The Dick Court concluded, however, that “because Spinelli was decided in May 2006, after Arbaugh was
issued in February 2006, and because it has not been withdrawn or overruled, this Court is still bound by its holding
that exhaustion is jurisdictional under the Rehabilitation Act.” Id. (citing Cobell v. Salazar, 816 F. Supp. 2d 10, 15
(D.D.C. 2011)). This Court is similarly bound.
30
“An aggrieved person must initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory . . . .” Id. § 1614.105(a)(1).
If the matter is not resolved through informal counseling, the aggrieved employee must,
within 15 days of receiving a notice of her right to file a discrimination complaint, file a written
complaint with the agency that allegedly discriminated against her. See id. § 1614.106(a)-(c).
The agency must investigate the matter within 180 days or reject the complaint and issue a final
dismissal unless “the parties agree in writing to extend the time period.” Id. §§ 1614.106(e)(2),
1614.107. At the conclusion of the agency’s investigation, the complainant may request a
hearing before an EEOC administrative judge or an immediate final decision by the agency. See
id. § 1614.108(f).
A complainant who receives an adverse final decision from the agency may appeal that
decision to the EEOC within 30 days, or may file a civil action within 90 days. See 42 U.S.C. §
2000e-16(c); 29 C.F.R. §§ 1614.402(a)-1614.407; see also Wilson v. Pena, 79 F.3d 154, 157
(D.C. Cir. 1996); Holley v. Dep’t of Veterans Affairs, 165 F.3d 244, 245–46 (3d Cir. 1999). A
complainant also may file a civil action at any time after a complaint has been pending before the
agency or the EEOC for at least 180 days. See 42 U.S.C. 2000e-16(c); 29 C.F.R. § 1614.408.
“Complainants must timely exhaust these administrative remedies before bringing their
claims to court.” Bowden, 106 F.3d at 437. As the U.S. Supreme Court stated in National
Railroad Passenger Corp. v. Morgan, “‘strict adherence to the procedural requirements specified
by the legislature is the best guarantee of evenhanded administration of the law.’” 536 U.S. 101,
108 (2002) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).
31
III. DISCUSSION
The four claims in the Complaint will be considered based on the underlying
discrimination claimed. Thus, Counts I and III, alleging racial discrimination and retaliation in
violation of Title VII, will be discussed separately from Counts II and IV, alleging disability
discrimination and retaliation in violation of the Rehabilitation Act. The plaintiff’s
Rehabilitation Act claims fail based on the threshold finding that the plaintiff was not disabled
within the meaning of the Act and the plaintiff otherwise failed to exhaust her administrative
remedies as to those claims. Those two counts are addressed first before turning to the Title VII
counts.
A. Rehabilitation Act Claims
The plaintiff cannot sustain her Rehabilitation Act claims in Counts II and IV because the
plaintiff was not disabled within the meaning of the Rehabilitation Act in effect at the time the
allegedly discriminatory actions occurred. As discussed more fully below, the applicable
definition of “disabled” is too narrow to cover the plaintiff’s right-hand CTS. Furthermore, to
the extent that the plaintiff bases her Rehabilitation Act claims on events occurring after January
1, 2009, those allegations were not administratively exhausted, thus depriving this Court of
subject matter jurisdiction.
1. The Pre-2009 Definition Of “Disabled” Applies To This Action
The threshold determination for any action under the Rehabilitation Act is whether the
individual making a claim is “disabled” within the meaning of the statute. See, e.g., Bell, 398 F.
Supp. 2d at 85 (“[A] key element is establishment of a disability covered by the Act.”). The
defendant challenges the plaintiff’s Rehabilitation Act claims at the outset by arguing she is not
“disabled” within the meaning of the Act. See Def.’s Mem. at 29; Def.’s Reply at 9. The Court
agrees with the defendant.
32
As the plaintiff notes, what constitutes a “disability” under the Rehabilitation Act
changed on January 1, 2009, when Congressional amendments to the ADA went into effect. 22
See Pl.’s Resp. Court Order (“Pl.’s Resp.”) at 5 n.5, ECF No. 65 (citing Pub. Law No. 110-325,
122 Stat. 3553 (2008) (“the ADA Amendments”)). The ADA Amendments “reinstat[ed] a broad
scope of protection under the ADA and [rejected] the holdings in” two Supreme Court cases,
namely, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (Toyota), 534 U.S. 184, 195–
96 (2002), and Sutton v. United Airlines, 527 U.S. 471 (1999). Lytes v. D.C. Water & Sewer
Auth., 572 F.3d 936, 939 (D.C. Cir. 2009). The D.C. Circuit has made clear that these
amendments “do not apply retroactively.” Id. at 938.
The plaintiff argues that “when, as here, some of the alleged disability discrimination
occurred after January 1, 2009,” the amended, broader definition applies. See Pl.’s Resp. at 5 n.5
(citing Hodges v. District of Columbia, 959 F. Supp. 2d 148, 154 (D.D.C. 2013)). The plaintiff’s
reliance on Hodges for this proposition is misplaced. In Hodges, the plaintiff’s disability issues
did not begin to occur until “early 2010” and the plaintiff’s disability was not diagnosed until
June 2010, more than one year after the ADA Amendments took effect. See Hodges, 959 F.
Supp. 2d at 150–51. Contrary to the plaintiff’s assertion, Hodges does not address the question
of whether the pre- or post-ADA Amendments definition applies to an employee’s claim when
the discrimination allegedly began before 2009 and continued after 2009. See id. Rather,
Hodges holds that the new definition applies to a claim that arose entirely after the ADA
amendments became effective. See id. at 154.
This Circuit does not appear to have addressed the factual circumstance at issue here:
where a plaintiff claims an ongoing hostile work environment based on her alleged disability that
22
The definition of “disability” contained in the ADA amendments also applies to the Rehabilitation Act. See 29
U.S.C. § 705(9)(B) (stating “disability” is given same meaning as in 42 U.S.C. § 12102 of ADA).
33
began before, and continued after, the ADA Amendments took effect. Nor have the parties
provided any such citations to the Court. The court in Klute, was faced with a similar factual
situation, but found it unnecessary to reach the issue because the plaintiff in that case did not
meet the definition of disability applicable under the pre- or post-2009 standard. 840 F. Supp. 2d
at 215 n.4.
The Court finds that the pre-2009 definitional standard applies to the vast majority of
conduct alleged in this matter. In Kapache v. Holder, 677 F.3d 454, 461 n.7 (D.C. Cir. 2012),
the D.C. Circuit noted that because “the conduct at issue preceded the ADA Amendments Act of
2008, the pre-amendment standards to determine liability govern [].” The Kapache court relied
on Lytes for this proposition, see id., and the rationale explained in Lytes militates in favor of
using the earlier, more stringent standard to evaluate the defendant’s actions in this matter. See
Lytes, 572 F.3d at 940. In Lytes, when considering whether the ADA Amendments were to be
applied retroactively, the Court placed great weight on the fact that Congress “delay[ed] the
effective date of the statute” and therefore “mandated purely prospective application of the
[ADA Amendments].” Id. The D.C. Circuit concluded that there was “no reason for the
Congress to have delayed the effective date [of the ADA Amendments] other than to give fair
warning of the Amendments to affected parties and to protect settled expectations.” Id.
Applying this same logic to the instant matter, the defendant had no “fair warning,” prior
to January 1, 2009, that the more lenient standard under the ADA Amendments would apply to
conduct that occurred in 2008 and earlier. This is significant since the amendments “broadened
the class of employees entitled to reasonable accommodation.” Id. at 942. Here, as the D.C.
Circuit found in Lytes, “[t]o hold the [agency’s] refusal to accommodate [the plaintiff] was
unlawful under the new, broader [ADA Amendments] but not the pre-Amendments ADA,
34
therefore, would be to give the [ADA Amendments] the disfavored retroactive effect.” Id.
(citing Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994)). The defendant in this matter
was subject, in 2007 and 2008, to the requirements of the ADA (through the Rehabilitation Act)
as they then existed. Thus, the pre-2009 definition of “disability” applies to the alleged conduct
that occurred prior to January 1, 2009.
2. The Plaintiff Was Not Disabled Within The Meaning Of The
Rehabilitation Act Until January 1, 2009
Prior to the ADA Amendments, “disability” was defined as “a physical or mental
impairment that substantially limits one or more of the major life activities of [an] individual,”
having “a record of such impairment,” or “being regarded as having such impairment.” Pub L.
101-336 § 3(2), 104 Stat. 329 (1990). The defendant does not dispute that the plaintiff’s right-
hand CTS constitutes a “physical impairment.” See Def.’s Mem. at 29. Rather, the defendant
disputes whether, under the pre-2009 version of the Rehabilitation Act, the plaintiff’s right hand
CTS “substantially limited” her “in any major life activity.” Id.
Much of the plaintiff’s argument on this point is directed toward whether the defendant
provided reasonable accommodations for her medical condition. See Pl.’s Opp’n Mem. at 34–
40. In doing so, the plaintiff places the proverbial cart before the horse. “To withstand summary
judgment on [a] disability discrimination claim, [the plaintiff] must produce enough evidence to
allow a reasonable jury to conclude that [the plaintiff] (1) has a disability; (2) was qualified to
perform the essential functions of employment with or without reasonable accommodation; and
(3) suffered an adverse employment decision due to [the plaintiff’s] disability.” Desmond v.
Mukasey, 530 F.3d 944, 952 (D.C. Cir. 2008) (citing Duncan v. WMATA, 240 F.3d 1110, 1114
(D.C. Cir. 2001) (en banc)) (emphasis added). If the plaintiff cannot establish that she had a
disability within the meaning of the Rehabilitation Act, the defendant had no obligation to
35
provide any accommodation and the plaintiff has no claim for relief under the Rehabilitation Act.
See id.
The pre-Amendments ADA created “a demanding standard for qualifying as disabled.”
Toyota, 534 U.S. at 197. The plaintiff contends that she meets this “demanding standard”
because she was substantially limited in major life activities, beginning in March 2007, when she
was significantly impaired from “working, keyboarding, driving, lifting, and caring for herself.”
Pl.’s Opp’n Mem. at 34. In Toyota, which narrowly defined disability under the pre-
Amendments ADA and served as an impetus for the ADA Amendments, see Lytes, 572 F.3d at
939, the Supreme Court held that when a physical impairment is alleged that pertains to
“performing manual tasks,” such as those described by the plaintiff, “an individual must have an
impairment that prevents or severely restricts the individual from doing activities that are of
central importance to most people’s daily lives.” 534 U.S. at 198. The plaintiff in Toyota
suffered from CTS, among other maladies, which made completing her work in an automobile
plant quite painful and resulted in her being placed on “modified duty jobs.” Id. at 188. The
Supreme Court held that the plaintiff’s CTS, tendinitis, and other medical problems did not
constitute a “disability” within the meaning of the pre-Amendments ADA, since the plaintiff was
still able to “brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do
laundry, and pick up around the house.” Id. at 202. Even the fact that the plaintiff in Toyota had
“to avoid sweeping, [] quit dancing, [] occasionally seek help dressing, [] and [] reduce how
often she play[ed] with her children, garden[ed], and [drove] long distances,” did not, in the
Supreme Court’s view, “amount to such severe restrictions in the activities that are of central
importance to most people’s daily lives” so as to “establish a manual task disability as a matter
of law.” Id.
36
In the instant matter, the plaintiff was able to “keyboard” up to four hours per day, Pl.’s
SMF ¶ 16, and the plaintiff has failed to submit any evidence that she was unable to perform “the
activities that are of central importance to most people’s daily lives,” Toyota, 534 U.S. at 202.
The plaintiff alleges in her Complaint that her symptoms “significantly impaired some of her
major life activities, including working, keyboarding, driving, lifting, and caring for herself,”
Compl. ¶ 255, but provides no further evidence after more than a year of discovery to
substantiate those claims. As the defendant points out, Def.’s Reply at 12, the plaintiff stated in
her deposition that she was able to drive herself to doctor’s appointments, Def.’s Mot. Ex. 12
147:5-7; care for herself despite living alone, id. 146:23–147:4; turn pages with her left hand, id.
142:5-15; bathe, “get in and out of bed,” “answer the telephone,” and “answer the door,” id.
140:14-21; and cook, though the plaintiff avers she was able to cook “with difficulty,” id. 140: 8-
13. Unlike the plaintiff in Toyota, who was entirely unable to perform certain activities, both at
work and at home, see Toyota, 534 U.S. at 202, the plaintiff in the instant matter may have
experienced discomfort due to the CTS in her right hand, but was still able to complete most of
her daily tasks, at work and at home, see Def.’s Mot. Ex. 12 140:1–147:7.
Proving that the plaintiff was disabled within the meaning of the Rehabilitation Act in
effect at the time the plaintiff’s claim arose is “an essential element of [the plaintiff’s] case,” and
the lack of colorable proof of this element “necessarily renders all other facts immaterial.”
Celotex, 477 U.S. at 323. The plaintiff has admitted she could perform the types of tasks that
“are of central importance to most people’s daily lives,” Toyota, 534 U.S. at 202, and she has
offered no evidence that her physical impairment from right-hand CTS meets the “demanding
standard for qualifying as disabled” within the meaning of the Rehabilitation Act. See Toyota,
534 U.S. at 197. Consequently, since the plaintiff fails to fulfill this threshold requirement, the
37
plaintiff’s Rehabilitation Act claims must fail, at least as to all events complained of that
occurred prior to January 1, 2009, when the ADA Amendments went into effect.
As for any events post-2008, the plaintiff makes no reference to any events occurring
after January 2009 in Count II or Count IV, the counts raising Rehabilitation Act claims. See
Compl. ¶¶ 248–59; 271–78. Indeed, the only reference in her Complaint to any post-2008 events
are contained in paragraphs 224 through 239 of the Complaint, but the conduct complained of in
those paragraphs is discrete from the issues raised in her 2007 EEO Complaint, which was
limited to the July 2007 memorandum requiring the plaintiff to use leave until she was able to
return to duty and the August 2007 bumping incident. See Compl. ¶¶ 224–39 (alleging the
defendant “neglected to honor plaintiff’s medical restrictions[;]” rejected those medical
restrictions after the Department of Labor ruled the plaintiff was “not entitled to workers’
compensation[;]” required to the plaintiff to return to full duty; and allegedly “harassed plaintiff
by looking through her personal hard drive at work in order to access her private documents that
may relate to her EEO activities”). Notably, the plaintiff does not plead, nor has she submitted
any evidence after discovery, that she made any attempt to pursue, administratively, any
Rehabilitation Act claims based on events occurring in 2009 through the appropriate EEO
channels. See Compl. ¶¶ 224–39.
The plaintiff alleges that her CTS became “bilateral” at some point in time, so that she
suffered from this condition not only in her right hand but also simultaneously in both hands.
Pl.’s Opp’n Mem. at 33. She does not allege, however, that she ever sought a reasonable
accommodation or initiated an EEO process for CTS in her left hand, as opposed to her right
hand, which was the subject of her 2007 complaint, let alone both hands simultaneously. 23 To
23
The plaintiff notes that she “received a letter” from the Department of Labor “accepting her [workers’
compensation] claim for left hand carpal tunnel syndrome” in March 2010. Compl. ¶ 236 (emphasis in original).
38
the contrary, the plaintiff concedes that “[o]n or about November 9, 2009, [the defendant] sent
plaintiff a memorandum rejecting her doctor’s medical restrictions” in light of a Department of
Labor Office of Workers’ Compensation finding that she was not entitled to benefits for her
right-hand CTS and should be capable of returning to full duty without restriction. See Compl. ¶
229. The defendant’s action denying any further reasonable accommodation, therefore, was
based on an independent agency’s determination that the plaintiff was not disabled and could
return to full duty. See Compl. ¶ 227. The plaintiff does not allege that she attempted to pursue
her reasonable accommodation claim after she received the November 2009 memorandum from
Merkle denying any further accommodations based on the Department of Labor’s findings. See
id. ¶¶ 229–37 (alleging that defendant “failed to provide full reasonable accommodations” but
providing no further information about what such accommodations were and when they were
requested). Thus, even assuming, arguendo, that the plaintiff could prove she were disabled
within the meaning of the ADA Amendments, she has not shown that she administratively
exhausted any post-2008 claims or that she attempted to seek reasonable accommodations after
January 1, 2009, for the left hand or both hands, at which point the agency would have been on
notice that it might have been required to offer reasonable accommodation under the new
definition of “disability” found in the ADA Amendments. See supra Part III.A.1.
Consequently, since the plaintiff fails to prove that she was disabled within the meaning
of the Rehabilitation Act before January 1, 2009, and she fails to present any evidence that she
exhausted her administrative remedies for any conduct that occurred after January 1, 2009,
Counts II and IV must be dismissed in their entirety. Thus, the defendant’s motion for Summary
Judgment is granted as to all Rehabilitation Act claims. 24
24
The defendant moved to dismiss this action under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative,
for Summary Judgment under Rule 56. Def.’s Mot. at 1. Since the plaintiff failed to exhaust her administrative
39
B. Title VII Claims
The plaintiff’s Title VII claims, contained in Counts I and III of the Complaint, are
sparsely pleaded, since the Complaint primarily describes conduct related to the plaintiff’s right-
hand CTS. See generally Compl. Each Title VII count is discussed separately below.
1. Count I “Race Discrimination – Hostile Work Environment”
A plaintiff may prevail on a hostile work environment claim if she can show that her
“employer subjected [her] to ‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’” Baloch, 550 F.3d at 1201 (D.C. Cir. 2008) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “To determine whether a hostile work environment
exists, the court looks to the totality of the circumstances, including the frequency of the
discriminatory conduct, its severity, its offensiveness, and whether it interferes with an
employee’s work performance.” Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–
88 (1998)). Title VII is not meant to be “a general civility code,” but rather to protect against
“conduct [so] extreme [as] to amount to a change in the terms and conditions of employment.”
Faragher, 524 U.S. at 788.
The plaintiff has not alleged the use of racially discriminatory comments or other overt
acts of racism in her workplace, either in her Complaint or in the extensive exhibits she
submitted. Instead, she appears to base her entire racial discrimination claim and, hence, her
remedies as to any post-2008 conduct, this Court lacks subject matter jurisdiction over that portion of her
Rehabilitation Act claims. See Spinelli, 446 F.3d at 162. Thus, the appropriate rule under which to dismiss these
claims is Federal Rule of Civil Procedure 12(b)(1). See id.; Ellison v. Napolitano, 901 F. Supp. 2d 118, 124 (D.D.C.
2012). Although the defendant did not seek dismissal under Rule 12(b)(1), the Court has an independent obligation
to dismiss claims over which it has no subject matter jurisdiction. See FED. R. CIV. P. 12(h)(3). The portion of the
plaintiff’s Rehabilitation Act claims involving post-2008 conduct is therefore dismissed pursuant to Rule 12(h)(3),
since the Court lacks subject matter jurisdiction over those claims absent the plaintiff’s exhaustion of administrative
remedies.
40
hostile work environment claim, on her perception of differential treatment of her and non-
African American employees, particularly Lynch, an Asian-American. At the summary
judgment stage, these vague and unsubstantiated assertions are insufficient to bring a case to
trial.
Specifically, the plaintiff alleges that (1) Lynch was held to a different standard regarding
work assignments than the plaintiff; supra Part I.B.1–2; (2) African Americans were denied
advance sick leave more often than non-African Americans, supra Part I.B.3.e; (3) she was
charged leave for late arrivals while non-African Americans were not, supra Part I.B.4; and (4)
she was allegedly assaulted by Mongelli on August 14, 2007, supra Part I.B.5.
a) Discriminatory Work Assignments
First, the plaintiff alleges that the defendant “engaged in race discrimination by treating
Plaintiff differently from Wendy Lynch (Asian) by expecting more from Plaintiff when she
returned from her medical absence than from Ms. Lynch when she returned from hers.” Pl.’s
Opp’n Mem. at 27. The plaintiff contends that she was held responsible for completing a project
she was assigned before her medical leave, the Excess Cash Project, but Lynch was not. Id. As
evidence for this contention, the plaintiff cites only her own deposition and statements and no
documentary evidence or first-hand knowledge. See id. at 27–28. The defendant, however,
provides deposition testimony from Lynch’s direct supervisor who assigned her the project,
Mongelli, who states that Lynch “finished [the projects] before she left . . . . [s]he came in on the
weekend before.” Def.’s Mot. Ex. 16 192:3-7. Although the Court may not make credibility
determinations on a summary judgment motion, it also need not accept unsupported allegations
in the face of directly contrary testimony from individuals with first-hand knowledge of the
relevant facts. See Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (noting that
plaintiff’s own statement amounting to “sheer hearsay . . . counts for nothing on summary
41
judgment”) (citing Gleklen, 199 F.3d at 1369); Gilmore v. Palestinian Interim Self-Gov’t Auth.,
53 F. Supp. 3d 191, 201 (D.D.C. 2014) (rejecting inadmissible evidence from consideration in
ruling on summary judgment motion); Grosdidier v. Chairman, Boradcasting Bd. of Governors,
774 F. Supp. 2d 76, 94 (D.D.C. 2011) (same). The plaintiff has failed to show, by means of
admissible evidence, that the defendant treated Lynch any differently than the plaintiff, meaning
this conduct cannot constitute part of a hostile work environment based on race. 25
b) Denial Of Advance Sick Leave
The plaintiff’s contention that non-African Americans were not denied advance sick
leave is similarly flawed and based on “inadmissible hearsay.” Greer, 505 F.3d at 1315. The
plaintiff’s allegations that non-African American employees were granted advance sick leave
and not charged with leave for arriving late to work are based entirely on the plaintiff’s
subjective observations, and the plaintiff has submitted no documentary evidence of any kind to
support her contention. See Pl.’s Opp’n Ex. 3 at 92:19–93:1 (plaintiff alleging in deposition that
“there were others that were being advanced leave or there were [sic] speculation that others
were being advanced leave” who were not African-Americans); id. at 93:2-3 (plaintiff noting in
deposition that she “didn’t go to the non-African Americans to say are you getting advanced
leave”) id. at 93:18-24 (plaintiff admitting in deposition that she obtained information regarding
advance sick leave “secondhand” and not “from the source”). Indeed, the plaintiff is unable to
name a single other employee, of any race or national origin, who had their advance leave
request denied while they had a similar negative leave balance to the plaintiff. See id. at 95:5-17.
Consequently, at the summary judgment stage, the plaintiff has failed to provide any admissible
25
The defendant also asserts that this claim was not administratively exhausted. See Def.’s Mem. at 7–10; Def.’s
Reply at 2–5. Since administrative exhaustion is not jurisdictional for Title VII claims, see supra Part II.E, the
Court need not address this contention in light of its finding that the plaintiff has failed to put forward an issue of
material fact such that a reasonable jury could find that she was subjected to a hostile work environment.
42
evidence that denial of advance sick leave was more prevalent for African-Americans than non-
African-Americans and, therefore, cannot form the basis of a hostile work environment claim.
c) Charging Plaintiff Leave For Late Arrival
As for charging the plaintiff with leave for arriving late to work, the plaintiff names three
non-African American employees who allegedly told her that they were not subject to the same
policy, Pl.’s Opp’n Ex. 3 at 102:1-15, but does not state whether these three employees were
similarly situated to her in that they were working under a counseling memorandum regarding
abuse of leave privileges, see id. Moreover, she admits that she did not speak to all of her co-
workers regarding the charging of leave for late arrival and that she spoke to no African-
American co-workers regarding the practice. Id. at 102:5-11. The plaintiff also states that this
requirement ended by 2008 after her return from carpal tunnel release surgery on her right hand.
Id. at 110:7–111:13. Thus, for the same reasons her discriminatory work assignment allegations
and denial of advance sick leave allegations fail, so must her differential treatment allegation
regarding the charging of leave for tardiness.
d) The Alleged Assault
The plaintiff offers no evidence that the August 14, 2007 “bumping” incident between
her and Mongelli was racially motivated. The Federal Protective Service determined that “there
was never an assault” during the incident. Def.’s Mot. Ex. 42 at 6. The plaintiff did not suffer
any physical injury as a result of the bumping, Pl.’s Opp’n Ex. 36 at 79:11-12, and did not seek
medical attention, see id. at 79:19-20 (plaintiff stating in deposition she proceeded to EEO office
after bumping incident). The plaintiff also offers no explanation as to how this bumping incident
could have “altered the conditions of [her] employment,” Baloch, 550 F.3d at 1201 to support a
hostile work environment claim.
* * *
43
The plaintiff is correct that hostile work environment claims must be examined in light of
the totality of the circumstances, Pl.’s Opp’n Mem. at 28, but the plaintiff has failed to provide
admissible evidence of any discriminatory actions as support for her allegations. Absent some
admissible evidence that her allegations had a racially motivated component—or, in the case of
the disparate treatment allegations, that the disparate treatment actually occurred—the plaintiff
has failed to present any evidence from which a reasonable jury could infer that she was
subjected to a hostile work environment on the basis of her race. In analogous factual
circumstances, where a plaintiff failed to show that any “of the comments or actions directed at
[the plaintiff] expressly focused on his race,” the D.C. Circuit upheld the District Court’s finding
that general “workplace conflicts” that were “sporadic [in] nature” and did not result in “tangible
workplace consequences” could not support a hostile work environment claim on summary
judgment. Baloch, 550 F.3d at 1201; see also Barbour v. Browner, 181 F.3d 1342, 1348 (D.C.
Cir. 1999) (holding that “intentionally slow response to one of [the plaintiff’s] requests for
information” and an employee’s public and intentional snubbing of the plaintiff at a meeting
were insufficiently “severe or pervasive to alter the conditions of [] employment”) (citing
Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1366 (10th Cir. 1997) for proposition that “five
mild incidents of harassment over 16 month period did not create hostile working environment).
Consequently, the defendant’s motion for summary judgment is granted as to Count I.
2. Count III “Retaliation” (Under Title VII)
The plaintiff submits most of the same incidents underlying her racial discrimination
claim as evidence of retaliation against the plaintiff for filing an unrelated EEO complaint in
2005, Compl. ¶ 262, as well as a vague claim that the defendant was “continuing to discriminate
against her” after she filed her “most recent EEO complaint on or about August 7, 2007,” id. ¶¶
267–68. Assuming that the plaintiff’s EEO complaints are protected activity and that her
44
employer knew of them, the plaintiff has failed to allege that she suffered any “adverse
employment action” within the meaning of Title VII, which is fatal to her retaliation claim.
An adverse employment action for Title VII retaliation purposes is one that “might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington Northern, 548 U.S. at 68 (internal quotation marks omitted). In response to the
Court’s Order seeking clarification of her retaliation claims, the plaintiff refers to several
incidents that reference her alleged disability exclusively, and are therefore irrelevant to her Title
VII claim. See Pl.’s Resp. at 3–5. The plaintiff described the following conduct that was not
exclusively related to her alleged disability: (1) Mongelli refused to provide “written instructions
to clarify [the plaintiff’s] responsibilities;” (2) Mongelli “made incorrect statements about
Plaintiff’s leave slips for August 8-9, 2007;” (3) Mongelli “harassed Plaintiff over her time and
attendance” on October 9, 2009; (4) “the Agency harassed Plaintiff by looking through her
computer hard drive at work, apparently to access documents that may relate to her EEO cases;”
and (5) the bumping incident. Id.
In the retaliation context, adverse actions are “not limited to discriminatory actions that
affect the terms and conditions of employment,” but reach any harm that “well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.” Baird,
662 F.3d at 1249 (quoting Burlington Northern, 548 U.S. at 64, 68). Nevertheless, “trivial
harms,” “petty slights,” and “minor annoyances” do not rise to the level of adverse employment
actions, even under the broader standard. Burlington Northern, 548 U.S. at 68.
Although the plaintiff may have been upset by some of the incidents that occurred
between 2007 and 2009, the standard for addressing adverse employment actions is an objective
one and consideration of “unusual subjective feelings” is inappropriate to determine whether an
45
action was retaliatory in nature. Id. at 68–69. Under an objective standard, none of the
plaintiff’s allegations rise to the level of an adverse action.
The plaintiff’s complaints that her supervisor did not provide written instructions and
“made incorrect statements” about her leave slips amount to no more than the type of “petty
slights” and “minor annoyances” that are rife in many employment settings. See id. at 68.
Mongelli requiring the plaintiff to be at her desk at the start of her shift and to alert a supervisor
before leaving the building during her work day is a similarly “petty slight” when viewed
objectively, despite the plaintiff’s subjective feeling that “she felt singled out because of her
EEO complaint.” See Pl.’s Resp. at 5. The plaintiff has provided no evidence, beyond bare
allegations in her own statements, that her hard drive was examined at any time, which is
insufficient on summary judgment to allow a case to proceed to trial. Id. Finally, bumping into
one’s supervisor while leaving one’s cubicle, when, due to the condition of the cubicle, “it would
be difficult for the occupant to leave without touching the visitor regardless of intent,” Inv. Rep.
at 3, where no physical injury resulted, is, at worst, the kind of “trivial harm” that does not rise to
the level of actionable retaliation under the Burlington Northern standard.
In short, the plaintiff has submitted no evidence that any of the alleged incidents could,
when viewed objectively, be sufficient to dissuade a reasonable worker from filing an EEO
complaint or otherwise exercising her rights under Title VII. Since no reasonable juror could
find that the plaintiff suffered an adverse employment action within the meaning of Title VII, the
defendant’s motion for summary judgment on Count III is granted.
* * *
While the plaintiff’s allegations were sufficient to survive a motion to dismiss, at the
summary judgment stage, the plaintiff must provide something more than her own self-serving
46
statements and uncorroborated allegations. She has not done so. Consequently, summary
judgment must be granted to the defendant.
IV. CONCLUSION
Since no reasonable jury could find that the plaintiff was disabled within the meaning of
the Rehabilitation Act in effect prior to January 1, 2009, or that the plaintiff was subjected to a
hostile work environment or retaliation based on her race, the defendant’s motion for summary
judgment is granted as to Counts II and IV as they pertain to pre-January 1, 2009 events and
Counts I and III in their entirety. To the extent that the plaintiff alleges discrimination and
retaliation based on post-January 1, 2009 events pertaining to her alleged disability, the plaintiff
has failed to show that she engaged in the requisite exhaustion of administrative remedies
allowing this Court to exercise subject matter jurisdiction over those claims. Consequently, to
the extent that Counts II and IV refer to post-January 1, 2009 conduct, those counts are dismissed
for lack of subject matter jurisdiction.
An Order consistent with this Memorandum Opinion will issue contemporaneously.
Date: May 13, 2015
Digitally signed by Judge Beryl A.
Howell
DN: cn=Judge Beryl A. Howell,
o=United States District Court,
ou=District of Columbia,
email=Howell_Chambers@dcd.uscourts
.gov, c=US
__________________________
Date: 2015.05.13 16:42:57 -04'00'
BERYL A. HOWELL
United States District Judge
47