Shealayno'sun v. Esper

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
LENA SHEALAYNO’SUN, )
)
Plaintiff, )
)
v. ) Case No. 18-cv-0746 (APM)
)
RYAN D. MCCARTHY, 1 in his official capacity )
as Secretary of the Army, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Lena Shealayno’sun, an engineer with the U.S. Army Corps of Engineers
(“the Corps”), brings this action against Defendant Ryan D. McCarthy, in his official capacity as
Secretary of the Army, asserting claims of discrimination and retaliation under the Rehabilitation
Act of 1973. Plaintiff was diagnosed with stage IV metastatic cancer in November 2015 and was
subsequently granted reasonable accommodations, including full-time telework and a flexible
schedule. She alleges that Defendant (1) discriminated against her by failing to accommodate her
disability and (2) retaliated against her on the basis of her disability.
This matter is presently before the court on Plaintiff’s Motion for Partial Summary
Judgment and Sanctions for Spoliation of Evidence, and Defendant’s Cross-Motion for Summary
Judgment. Plaintiff moves for partial summary judgment on her retaliation claims only, whereas
Defendant moves for summary judgment on all claims. After thorough consideration of the
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Ryan D. McCarthy, in his official capacity as Secretary of the Army, is substituted for Defendant Dr. Mark T. Esper
under Federal Rule of Civil Procedure 25(d).
parties’ arguments and the record in its entirety, the court concludes that genuine issues of material
fact preclude entry of summary judgment on one of Plaintiff’s retaliation claims—the lowering of
her performance rating. The court, however, finds no genuine issues of material fact as to the
remainder of Plaintiff’s claims. Accordingly, the court denies Plaintiff’s motion for partial
summary judgment and grants in part and denies in part Defendant’s motion for summary
judgment.
II. BACKGROUND
A. Factual Background
1. Lead up to Plaintiff’s Cancer Diagnosis
Plaintiff Lena Shealayno’sun has been an engineer for the U.S. government since 1987.
Def.’s Mot. for Summ. J., ECF No. 34 [hereinafter Def.’s Mot.], Dep. of Lena Shealayno’sun, ECF
No. 34-4 [hereinafter Pl.’s Dep. Tr.], at 13:4–6, 16:23–25. In January 2012, she started work as a
“Direct Reporting Unit Engineer” for the U.S. Army Corps of Engineers’ Directorate of Logistics
(“DOL”). Def.’s Mot., Def.’s Stmt. of Material Facts Not in Genuine Dispute, ECF No. 34-2
[hereinafter Def.’s SoF], ¶¶ 1, 3, 11. An expert on engineering in facilities, Plaintiff is the only
credentialed engineer within the DOL. See Pl.’s Mot. for Partial Summ. J. & Sanctions for
Spoliation of Evidence, ECF No. 33 [hereinafter Pl.’s Mot.], Pl.’s Mem. of P. & A. in Supp. of
Pl.’s Mot., ECF No. 33-1 [hereinafter Pl.’s Mem.], at 3; Def.’s SoF ¶ 20. Since joining the agency,
Plaintiff’s direct supervisor and rater has been the DOL Director, Jeffrey Burbach. See Def.’s SoF
¶ 21; Def.’s Mot., Dep. of Jeffrey Burbach, ECF No. 34-5 [hereinafter Burbach Dep. Tr.], at
104:19–105:04.
Between mid-June 2015 and October 31, 2015, Plaintiff was detailed to the Interagency
and International Services division within the Corps. Pl.’s Dep. Tr. at 40:16–21, 48:11–13. She
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returned to the DOL in early November 2015, id. at 49:20–50:1, and with her return came some
very unfortunate news. On November 6, 2015, Plaintiff was diagnosed with cancer. See id. at
50:17–20. Several days later, she learned it was stage IV metastatic cancer, which is incurable.
Id. at 50:17–20, 58:17–23. Due to the advanced stage of Plaintiff’s cancer, she required aggressive
treatment. Id. at 85:21–25. Plaintiff immediately notified Mr. Burbach’s deputy, Belinda Taswell,
of her cancer diagnosis, and Ms. Taswell then notified Mr. Burbach. See Pl.’s Mem., Ex. 14
[hereinafter PEX 14], at 311. 2 Plaintiff requested that Mr. Burbach keep her medical condition
private. See Def.’s Mem. of P. & A. in Opp’n to Pl.’s Mot. for Sanctions and in Opp’n to Pl.’s
Mot. for Partial Summ. J., ECF No. 38 [hereinafter Def.’s Opp’n], Def.’s Resp. to Pl.’s Stmt. of
Undisputed Material Facts, ECF No. 38-1 [Def.’s Resp. to Pl.’s SoF], ¶ 77; Burbach Dep. Tr.,
at 12:14–16.
2. Plaintiff’s Request for Reasonable Accommodations
On November 13, 2015, Plaintiff contacted the Corps’s Equal Employment Opportunity
(“EEO”) Specialist, Earl Newton, regarding a request for reasonable accommodations. See Def.’s
Resp. to Pl.’s SoF ¶ 19. On that same day, Plaintiff says Ms. Taswell informed her that she had
shared Plaintiff’s cancer diagnosis with another Corps employee. See Pl.’s Dep. Tr. at 55:19–56:3.
As a result, one of the accommodations Plaintiff sought was reassignment to another directorate
due to the unauthorized disclosure of her medical information. See Pl.’s Opp’n, Ex. 10, ECF No.
37-1 [hereinafter Pl.’s Opp’n Ex. 10], at 108; Pl.’s Dep. Tr. at 55:6–11. Following her conversation
with Mr. Newton, Plaintiff says she “sensed that he had some bias [due to his personal relationship
with Ms. Taswell] and also some incompetence.” Pl.’s Dep. Tr. at 54:18–21; Pl.’s Mem., Stmt. of
2
Plaintiff’s exhibits to her motion for partial summary judgment, noted as “PEX,” are located in the same document
as her memorandum in support thereof, ECF No. 33-1. Accordingly, pincites to Plaintiff’s exhibits refer to the PDF
page numbers.
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Undisputed Material Facts [hereinafter Pl.’s SoF], ¶ 23. 3 As a result, Plaintiff instead turned to
the Corps Command Surgeon, Commander Thomas Janisko, for assistance in filing her request for
reasonable accommodations. Pl.’s Opp’n to Def.’s Mot. for Summ. J., ECF No. 37 [hereinafter
Pl.’s Opp’n], Pl.’s Stmt. of Material Facts in Dispute [hereinafter Pl.’s Resp. to Def.’s SoF], ¶¶
28–29. 4
Through Commander Janisko, Plaintiff submitted two forms. On “Form 1-2 (Medical
Information Sheet),” Plaintiff’s physician Dr. Tejaswi Sastry explained that Plaintiff had been
diagnosed with “metastatic cancer” of unknown primary source, see Def.’s Mot., Ex. 1, ECF
No. 34-8 [hereinafter DEX 1], at 3; 5 Pl.’s SoF ¶ 27, and that her “[p]rognosis & treatment plans
[we]re pending . . . results from additional testing & consultation reports from specialists,” Pl.’s
Opp’n Ex. 10 at 108. Dr. Sastry noted that Plaintiff’s “diagnosis [would] render[] a significant
impairment for an estimated 6-8 months while [Plaintiff] receive[d] treatment & recover[ed] from
that treatment.” Id. On “Form 1-1 (Request for Reasonable Accommodation),” Plaintiff requested
(1) “[m]edical telework and flexibility in scheduled work hours as required for medical
appointments” and procedures; (2) “[a]dditional time to complete tasks for non-mission
essential/non-critical job duties”; and (3) “[r]e-assignment to another . . . Directorate due to
unauthorized disclosure of private medical information in violation of the Privacy Act and/or
HIPAA Act, on/about 13 NOV 2015.” See DEX 1 at 2.
3
Plaintiff’s Statement of Undisputed Material Facts is located within her Memorandum of Points & Authorities in
Support of Motion for Partial Summary Judgment and Sanctions for Spoliation of Evidence, ECF No. 33-1, starting
at page 2.
4
Plaintiff’s Statement of Material Facts in Dispute is located within her Opposition to Defendant’s Motion for
Summary Judgment, ECF No. 37, starting at page 3.
5
Defendant’s exhibits to his motion for summary judgment, noted as “DEX,” are located within a single document
at ECF No. 34-8. Accordingly, pincites to Defendant’s exhibits refer to the PDF page numbers.
4
As Plaintiff’s supervisor, Mr. Burbach was the “approval authority” for her request for
reasonable accommodation. Def.’s SoF ¶ 31. Because Mr. Burbach was unfamiliar with the
accommodation process, however, he says he sought guidance from Mr. Newton, Commander
Janisko, and others, on how to handle Plaintiff’s accommodation request. See Burbach Dep. Tr.at
50:14–17; Pl.’s Mem., Ex. 2, Jeffrey Burbach 30(b)(6) Dep. Tr., at 118. In an email to Plaintiff
dated November 30, 2015, Commander Janisko relayed to Plaintiff that Mr. Burbach was
“completely on board” with her request for reasonable accommodation and would “support[] [her]
in whatever [she] need[ed].” Def.’s Mot., Dep. of Thomas Janisko, ECF No. 34-7 [hereinafter
Janisko Dep. Tr.], at 62:9–13. At that time, Plaintiff was placed on full-time medical telework and
a flexible work schedule to attend medical appointments. See Pl.’s Resp. to Def.’s SoF ¶ 48; Pl.’s
Dep. Tr. at 98.
According to Mr. Newton, Mr. Burbach did not contact him about Plaintiff’s request for
accommodation until sometime in 2016. See Def.’s Mot., Dep. of Earl Newton, ECF No. 34-6
[hereinafter Newton Dep. Tr.], at 80:2–3. Until then, he explains, Mr. Burbach had been letting
Plaintiff telework for a year as an informal grant of her accommodation request. Id. at 80:18–81:7,
82:22–84:6. Shortly after Mr. Newton instructed Mr. Burbach on the proper procedure for
processing reasonable accommodation requests, Mr. Newton says Mr. Burbach inquired as to what
“restrictions” he could place on Plaintiff. Id. at 86:22–87:14. Mr. Burbach said he wanted to
impose a weekly report on Plaintiff and other teleworkers to get a better understanding of what
they were working on. Id. at 88:21–89:16.
3. Renewal of Plaintiff’s Accommodations and Her EEO Complaints
In the spring of 2016, the relationship between Plaintiff and Mr. Burbach began to sour.
Plaintiff alleges that by April 2016, Mr. Burbach was calling her monthly to ask about her health
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status and when she planned on physically coming into the office. See Pl.’s Dep. Tr. at 107:8–15;
see also Pl.’s SoF ¶ 47 (citing Pl.’s Dep. Tr. at 107:10–20) (“His calls became progressively more
aggressive in tone and he continuously asked for a specific date of when [Plaintiff] would return.”).
At the same time, Plaintiff was undergoing aggressive treatment for her cancer. In April 2016,
Plaintiff underwent surgery, and because there were complications, she was out of work for
approximately two weeks. See Pl.’s Dep. Tr. at 79:11–21. She started a second round of
chemotherapy in June 2016 and underwent treatment weekly, usually on Tuesdays, through the
end of August 2016. See id. at 80:13–81:8.
On September 23, 2016, Mr. Burbach sent Plaintiff an email in which he asked her to
submit a new request for accommodations because it had been “nearly a year since the first one
was signed.” DEX 14 at 39. He stressed that the request should “include [Plaintiff’s] Physician’s
current Diagnosis and Prognosis.” Id. In the same email, Mr. Burbach informed Plaintiff that she
was expected to call in to all DOL meetings, including staff meetings on Tuesdays (when Plaintiff
frequently was scheduled to see her oncologist, see Pl.’s Dep. Tr. at 80:21–81:13), among other
requirements, see DEX 14 at 39–40.
On October 26, 2016, Plaintiff’s physician, Dr. Rebecca L. Stone, wrote a letter to the
agency explaining that Plaintiff’s prognosis remained “uncertain,” and because her cancer was at
stage IV, “there [was] a 90% risk of recurrence over the next 10 months.” DEX 3 at 8. Dr. Stone
stated that Plaintiff likely would “need even more aggressive medical treatments and/or surgery.”
Id. “Not unexpectedly,” Dr. Stone added, Plaintiff was “battling anxiety and depression,” and she
recommended that Plaintiff “avoid mental and physical stress, in particular a stressful work
environment.” Id. Dr. Stone conveyed her recommendation that Plaintiff “not return to her public
workplace until medically cleared to commute to and from the office, and to work multiple hours
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without relief.” Id. “If at all possible,” she added, “[Plaintiff] should be reassigned to a work
environment that is most permissive to her healing.” Id.
On November 1, 2016, Plaintiff attached Dr. Stone’s letter and another from Dr. Sastry,
see DEX 2 at 6, to an informal complaint she filed with the Corps’s EEO office, see PEX 6 at 247.
In her informal complaint, Plaintiff alleged disability discrimination arising from what she claimed
was “[Mr.] Burbach’s revocation of [her] reasonable accommodation.” Pl.’s SoF ¶ 50; Def.’s SoF
¶ 36. On December 23, 2016, Plaintiff filed a formal EEO complaint alleging, among other things,
that Mr. Burbach: “repeatedly made harassing and intimidating phone calls regarding [her]
medical status and return to the workplace,” “failed to implement [her] reassignment, in violation
of [her] original [reasonable accommodation] request,” “failed to remedy [a] Privacy Act violation
by his deputy,” and “failed to restore 44 hours of annual leave for the time period January 25-29,
2016.” PEX 7 at 252–53; see Def.’s SoF ¶ 37; Pl.’s SoF ¶ 51.
Just over two weeks later, on January 11, 2017, Mr. Burbach sent Plaintiff a letter
“approving the continuance of [her] Reasonable Accommodation” and providing “guidance on
[her] work parameters/requirements.” DEX 4 at 11. The requirements largely echoed those in
Mr. Burbach’s September 23, 2016 email, with a few additions, including that Plaintiff email
Mr. Burbach when she closed out work at the end of each day. Id. at 11–12. Approximately two
weeks later, Plaintiff filed a second informal complaint alleging disability discrimination arising
from Mr. Burbach’s January 11, 2017 letter. See Pl.’s SoF ¶ 56 (citing PEX 9).
4. Escalating Tension and Plaintiff’s Performance Evaluation
Just shy of two years into Plaintiff’s accommodation, on October 17, 2017, Mr. Burbach
sent Plaintiff a letter stating that he had “come to the conclusion that [her] current arrangement of
full-time telework [was] not compatible with the successful performance of [her] job duties and
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[was] no longer tenable.” DEX 5 at 14. He explained that, “[f]or some time,” he had “observed a
lack of engagement with [the DOL] operation/staff and insufficient tangible work products.” Id.
He also stated that Plaintiff’s “absence from the workplace ha[d] interfered with [her] ability to
effectively communicate and coordinate with [her] colleagues” and, as a result, had “had a
detrimental impact on the DOL mission.” Id. Mr. Burbach instructed Plaintiff “to report to the
workplace” by the end of the week. Id. He added that if Plaintiff was “medically incapable of
doing so, [she would] need to request sick leave and provide medical documentation if [her]
inability to be present continue[d] for more than three days.” Id. When Plaintiff did not report to
the office by the deadline, Mr. Burbach sent her an email demanding that she “either come into
the office [that day] or put in for sick leave.” DEX 13 at 36. In response, Plaintiff advised
Mr. Burbach that the issue was now a “legal matter” and told him that he would be receiving a
response from her attorney. Id.
Just under two months later, on December 14, 2017, Mr. Burbach issued Plaintiff’s
performance evaluation for the period of October 1, 2016, through September 30, 2017, giving her
a rating of “3.” See Pl.’s SoF ¶ 57; Burbach Dep. Tr. at 77:11–19. Whereas Plaintiff had received
the highest rating of “1” since at least 2014, see PEX 14 at 311, a rating of “3”—the third-highest
rating—represented a significant departure. Plaintiff complained about this rating to Mr. Burbach
and her second-line supervisor on the grounds that it was “significantly downgraded [from years
prior] and not representative of [her] work.” Pl.’s Dep. Tr. at 36:14–15. Eventually, Mr. Burbach
changed the rating to a “2.” See id. at 37:22–38:2; Burbach Dep. Tr. at 77:11–16.
The tension between Mr. Burbach and Plaintiff continued to grow from there. On February
14, 2018, Mr. Burbach again requested that Plaintiff provide her updated “diagnosis and prognosis,
to include information about how Plaintiff’s disability could impact her ability to complete the
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essential functions of her position.” DEX 7 at 20. “In conjunction with the Prognosis,”
Mr. Burbach told Plaintiff, he “need[ed] to better understand the expected duration [she] w[ould]
need to telework from home.” Id. Plaintiff responded with a letter from Dr. Sastry, which
explained that Plaintiff’s cancer would not be going away and that “[h]er treatment w[ould] always
be ongoing.” DEX 9 at 26. Plaintiff told Mr. Burbach that her “doctors [were] confounded as to
why there [were] repeated requests for updates to [her] medical condition, for the same qualifying
disability.” DEX 7 at 19. She noted that “this [was] the third request for the same information.”
Id.
In March 2019, Mr. Burbach sent Plaintiff another letter, “address[ing] issues with [her]
job performance which, based on [his] observations, ha[d] been caused or exacerbated by [her]
absence from the worksite and [her] irregular schedule.” DEX 6 at 16. He again asked Plaintiff
“to obtain up[-]to[-]date documentation from [her] medical provider” that covered, among other
things, the “nature and severity of [her] impairments” and the activities “limited by [her]
impairments.” Id. This time, Dr. Sastry wrote directly to Mr. Burbach, directed him to her
February 2018 letter, and said that if Mr. Burbach needed more specific information he would need
to obtain a signed release from Plaintiff. See DEX 10 at 28.
In the intervening time, Plaintiff filed this lawsuit on April 3, 2018, asserting one count
each of discrimination and retaliation in violation of the Rehabilitation Act of 1973, 29 U.S.C
§§ 791 et seq. See Compl., ECF No. 1. On July 3, 2019, when Mr. Burbach still had not received
updated medical information from Plaintiff, he sent her another letter, setting a deadline of July
19, 2019, by which she was to provide the requested information or face potential “cancellation of
[her] telework privileges.” DEX 11 at 30–31. On July 15, 2019, Dr. Sastry sent a letter to the
Corps in which she provided a detailed explanation of Plaintiff’s diagnosis, her prognosis (which
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she said was “ongoing”), and the “serious physical impairments and major life limiting activities”
that Plaintiff faces. DEX 12 at 33. She also certified that the reasonable accommodations already
granted to Plaintiff were “necessary to allow her to continue to operate successfully in her
position.” Id. at 32.
B. Procedural Background
Following initial discovery, Plaintiff moved for leave to amend her Complaint to add and
correct factual material and to alter the relief sought. See Pl.’s Consent Mot. for Leave to Amend
Compl., ECF No. 23, at 1. The court granted Plaintiff leave to amend, see Minute Order, July 22,
2019, and on August 5, 2019, Defendant answered Plaintiff’s Amended Complaint, see Answer,
ECF No. 25. Discovery concluded on December 31, 2019, see Order, ECF No. 30, and on April
17, 2020, the parties filed cross-motions for summary judgment, see Pl.’s Mot.; Def.’s Mot.
Plaintiff asks the court to enter judgment in her favor on Count II of her Amended
Complaint, arguing that she has proffered sufficient evidence to show that Defendant unlawfully
retaliated against her when he “disclosed her medical information, revoked and restricted her
reasonable accommodation, lowered her performance rating, and refused to credit her . . . leave.”
Pl.’s Mem. at 1, 28. She also moves the court for sanctions in the form of “adverse inferences,
both in the summary judgment decision and at trial,” as well as “attorneys’ fees and costs related
to [her] discovery dispute and motion for sanctions,” on the grounds that Defendant committed
various discovery-related infractions. Id. at 19.
Defendant opposes Plaintiff’s motion for sanctions and cross-moves for summary
judgment on both counts of the Amended Complaint, contending that “there is no genuine issue
of material fact relative to” any of Plaintiff’s claims. Def.’s Mem. at 4. Briefing on the cross-
motions for summary judgment concluded on May 29, 2020, and they are now ripe for review.
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See Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. for Sanctions & Partial Summ J., ECF No. 40
[hereinafter Pl.’s Reply]; Def.’s Reply in Supp. of Mot. for Summ. J., ECF No. 41 [hereinafter
Def.’s Reply].
III. LEGAL STANDARDS
A. Discovery Sanctions
“A district court may order sanctions . . . for misconduct either pursuant to Rule 37(b)(2)
of the Federal Rules of Civil Procedure, which authorizes a court to assess a sanction for violation
of a discovery order, or pursuant to the court’s inherent power to protect its integrity and prevent
abuses of the judicial process.” Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998)
(cleaned up). Rule 37(b)(2) provides in relevant part that, if a party “fails to obey an order to
provide or permit discovery,” the court “may issue further just orders,” including, but not limited
to, an order directing that “designated facts be taken as established for purposes of the action, as
the prevailing party claims.” Fed. R. Civ. P. 37(b)(2)(A). And pursuant to the court’s inherent
power, it “‘may impose issue-related sanctions,’ such as an adverse inference instruction,
‘whenever a preponderance of the evidence establishes that a party’s misconduct has tainted the
evidentiary resolution of [an] issue.’” Zhi Chen v. District of Columbia, 839 F. Supp. 2d 7, 12
(D.D.C. 2011) (quoting Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1478 (D.C. Cir. 1995));
see also Gerlich v. U.S. Dep’t of Justice, 711 F.3d 161, 170 (D.C. Cir. 2013) (“This court has
recognized that a negative inference may be justified where the defendant has destroyed potentially
relevant evidence.”).
“When selecting the appropriate sanction, the Court must properly calibrate the scales to
ensure that the gravity of an inherent power sanction corresponds to the misconduct.” Davis v.
D.C. Child & Family Servs. Agency, 304 F.R.D. 51, 60 (D.D.C. 2014) (internal quotation marks
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omitted). “[T]he choice of an appropriate sanction is necessarily a highly fact-based determination
based on the course of the discovery process leading up to the sanction . . . .” Bonds v. District of
Columbia, 93 F.3d 801, 804 (D.C. Cir. 1996). A court’s use of its power to sanction misconduct
“should reflect our judicial system’s strong presumption in favor of adjudications on the
merits.” Shepherd, 62 F.3d at 1475.
B. Summary Judgment
On a motion for summary judgment, the court’s “threshold inquiry [is] determining
whether there is the need for a trial—whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see Fed. R. Civ.
P. 56(a). The “party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted); see
Fed. R. Civ. P. 56(c)(1). In assessing whether a genuine issue of material fact exists, the court
must view the evidence “in the light most favorable to the nonmoving party and . . . draw all
reasonable inferences in favor of the nonmoving party.” Talavera v. Shah, 638 F.3d 303, 308
(D.C. Cir. 2011).
A fact is only material if it could establish an element of a claim or defense and therefore
“might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248.
Likewise, a “dispute about a material fact is ‘genuine’ . . . if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. “Where—as here—the parties file cross-
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motions for summary judgment, each must carry its own burden under the applicable legal
standard.” Pierce v. District of Columbia, 128 F. Supp. 3d 250, 265 (D.D.C. 2015) (cleaned up).
“The moving party is entitled to summary judgment when the nonmoving party fails to offer
evidence sufficient to establish an essential element of a claim on which it will bear the burden of
proof at trial.” Porter v. Sebelius, 192 F. Supp. 3d 8, 12 (D.D.C. 2016) (citing Celotex, 477 U.S.
at 322).
C. The Rehabilitation Act
The Rehabilitation Act of 1973 provides in relevant part that “[n]o otherwise qualified
individual with a disability” may be discriminated against by a federal agency “solely by reason
of her or his disability.” 29 U.S.C. § 794(a). Although the Act does not specifically delineate the
particular types of discrimination the statute prohibits, it provides that the applicable legal
standards “shall be the standards applied under” the analogous discrimination provisions of the
Americans with Disabilities Act (“ADA”). See id. § 794(d); see also Schmidt
v. Solis, 891 F. Supp. 2d 72, 86–87 (D.D.C. 2012) (noting that, under the Rehabilitation Act,
“substantive rights are defined by reference to the ADA, as well as the [EEOC’s] regulations and
enforcement guidance that implement the ADA”).
Under the ADA, discrimination includes “not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such covered
entity.” 42 U.S.C. § 12112(b)(5)(A). A qualified individual with a disability is “an individual
who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
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The ADA’s anti-retaliation provision forbids “discrimina[tion] against any individual
because such individual has . . . made a charge . . . under this chapter.” 42 U.S.C. § 12203(a); see
also Solomon v. Vilsack, 763 F.3d 1, 15 (D.C. Cir. 2014) (holding that “the act of requesting in
good faith a reasonable accommodation is protected activity” for purposes of retaliation claims
brought under the Rehabilitation Act). The D.C. Circuit has held that the framework for analyzing
anti-retaliation suits under the ADA and Rehabilitation Act mirrors that applied in retaliation suits
under Title VII of the Civil Rights Act. See Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.
Cir. 2005) (“Although the [retaliation] framework was developed for Title VII cases, our sister
circuits have all accepted its application to ADA retaliation suits under § 12203(a), as we do
now.”).
IV. DISCUSSION
Because Plaintiff asks the court to apply adverse evidentiary inferences in evaluating
summary judgment, the court starts its discussion with Plaintiff’s motion for sanctions before
turning to the parties’ cross-motions for summary judgment.
A. Motion for Sanctions
1. Spoliation of Evidence
Plaintiff first argues that Defendant “engaged in sanctionable conduct by failing to place a
litigation hold on relevant witnesses’ email accounts”—specifically, that of EEO Specialist Earl
Newton—“which led to the destruction of relevant documents.” Pl.’s Mem. at 19. Once a party
anticipates that it will be subject to litigation, the party has a duty to preserve any evidence that
may be potentially relevant. Shepherd, 62 F.3d at 1481 (noting that a party has “an obligation to
preserve and also to not alter documents it knew or reasonably should have known were relevant
. . . if it knew the destruction or alteration of those documents would prejudice [its opponent]”
14
(internal quotation marks omitted)); see also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218
(S.D.N.Y. 2003) (“Once a party reasonably anticipates litigation, it must suspend its routine
document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation
of relevant documents.”). “A party that fails to preserve evidence runs the risk of being justly
accused of spoliation—defined as the destruction or material alteration of evidence or the failure
to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation—
and find itself the subject of sanctions.” Zhi Chen, 839 F. Supp. 2d at 12 (internal quotation marks
omitted).
An issue-related sanction, such as the adverse inferences Plaintiff seeks in this case, is
warranted if:
(1) the party having control over the evidence had an obligation to
preserve it when it was destroyed or altered; (2) the destruction or
loss was accompanied by a culpable state of mind; and (3) the
evidence that was destroyed or altered was relevant to the claims or
defenses of the party that sought the discovery of the spoliated
evidence, to the extent that a reasonable factfinder could conclude
that the lost evidence would have supported the claims or defense of
the party that sought it.
Mazloum v. D.C. Metro. Police Dep’t, 530 F. Supp. 2d 282, 291 (D.D.C. 2008) (internal quotation
marks omitted).
Plaintiff has produced evidence in the form of deposition testimony of the Corps’s
IT technician, Leonard S. Day, stating that Defendant failed to place a litigation hold on the emails
of Earl Newton, the EEO Specialist involved in the processing of Plaintiff’s reasonable
accommodation request, prior to Mr. Newton’s retirement on April 30, 2019. See PEX 26 at 374–
75; Pl.’s SoF ¶ 84. As a result, Mr. Newton’s emails were deleted 45 days after his retirement in
accordance with standard procedure at the time. PEX 26 at 374. Because Mr. Newton’s retirement
came over a year after Plaintiff initiated this lawsuit, Plaintiff contends, there can be no doubt that
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Defendant reasonably “anticipate[d] litigation,” nor that Defendant understood the “central role”
of Mr. Newton in the lawsuit. Pl.’s Mem. at 20. Accordingly, Plaintiff argues that “Defendant
recklessly disregarded [his] clear duty to preserve Newton’s emails, therefore qualifying as bad
faith destruction of relevant evidence . . . warranting sanctions.” Id. at 21; see also Mazloum, 530
F. Supp. 2d at 293 (holding gross negligence can constitute culpable state of mind).
But Plaintiff’s argument falters on the third element of relevance. As the D.C. Circuit has
recognized, determining the relevance of destroyed evidence is “unavoidably imperfect” because
“in [its] absence . . . a court can only venture guesses . . . as to what that missing evidence may
have revealed.’” Gerlich, 711 F.3d at 171 (cleaned up). In such circumstances, “the burden on
the party seeking the adverse inference is lower; the trier of fact may draw such an inference based
even on a very slight showing that the documents are relevant.” Ritchie v. United States, 451 F.3d
1019, 1025 (9th Cir. 2006) (quoted approvingly in Gerlich, 711 F.3d at 172). Here, however,
Plaintiff has not provided a shred of evidence that the deleted emails were relevant. Instead, all
evidence points to the contrary.
To begin, Mr. Day testified that notwithstanding the destruction of Mr. Newton’s electronic
mailbox 45 days after his retirement, all of Mr. Newton’s emails through about November 2018
were preserved in the Corps’s “Enterprise Vault.” PEX 26 at 373–74. Recall, Plaintiff filed this
action seven months earlier in April 2018. According to the declaration of agency counsel
Catharine Debelle, Mr. Day conducted a search of these archived emails using the search terms
supplied by Plaintiff, which generated approximately 11.3 GB of data. See Decl. of Catharine
Debelle, ECF No. 38-2 [hereinafter Debelle Decl.], ¶ 13. “All relevant and discoverable emails
[from that] search,” Ms. Debelle says, “were disclosed to Plaintiff.” Id. ¶ 14. Thus, for Plaintiff’s
claim of spoliation to succeed, she must show that “a reasonable factfinder could conclude that”
16
Mr. Newton’s emails after November 2018 “would have supported [her] claims.” Mazloum, 530
F. Supp. 2d at 291 (internal quotation marks omitted). She has not done so.
There is no evidence in the record to suggest that Mr. Newtown was involved with
Plaintiff’s EEO activities after she filed a formal complaint in December 2016. In fact,
Mr. Newton testified that he would have been prohibited from interacting with an employee he
had assisted with a reasonable accommodation after that point, until the conclusion of the
investigation into her complaint, given the conflict of interest it posed. See Newton Dep. Tr. at
72:22–73:11; 127:2–7. Plaintiff offers no evidence to contradict Newton’s testimony, and her own
undisputed statement of material facts places Newton’s last relevant acts as occurring in November
2016, two years earlier than his last preserved emails. See Pl.’s SoF ¶¶ 33–34, 79. Accordingly,
the court agrees with Defendant that “there is no reason to believe that any emails Mr. Newton
sent or received after November 2018 (a full seven months after Plaintiff filed this action) would
be relevant to Plaintiff’s claims,” Def.’s Opp’n at 11, and therefore declines to sanction Defendant
for spoliation of evidence.
2. Violation of Discovery Order
Plaintiff next argues that Defendant should be sanctioned for violating the court’s October
21, 2019 “Discovery Order,” because “Defendant did not in good faith follow the Court’s order to
conduct a search to identify emails not previously produced, produce evidence of comparators[,]
or produce a witness to testify about how Defendant searched for records.” Pl.’s Mem. at 24.
This argument is flawed for several reasons.
The first and most obvious problem is that “[a] production order is generally needed to
trigger Rule 37(b),” Att’y Gen. of U.S. v. Irish People, Inc., 684 F.2d 928, 951 n.129 (D.C. Cir.
1982), and the order that Plaintiff relies on for her sanctions argument hardly qualifies as such.
17
The order at issue was an administrative Minute Order authorizing the extension of the discovery
deadline. See Minute Order, Oct. 21, 2019.
Second, even if the guidance provided by the court at the October 21, 2019 status
conference could reasonably be construed as “an order to provide or permit discovery,” there is
every indication that Defendant complied with that guidance. According to Ms. Debelle,
“[f]ollowing the October 21, 2019 discovery status conference, Defendant conducted searches for
emails and documents utilizing the search terms and dates agreed to after discussions with
Plaintiff’s counsel.” Debelle Decl. ¶ 24. Together, Ms. Debelle’s declaration and Mr. Day’s
testimony detail the steps the agency took to search for and produce all relevant emails and files
from the identified custodians’ accounts. See Debelle Decl. ¶¶ 3–11, 13–28; Def.’s Opp’n, Dep.
of Leonard S. Day, ECF No. 38-3, at 10:21–13:10. Plaintiff takes issue with Defendant’s decision
to allow custodians to search their own emails and documents for relevant responsive documents,
see Pl.’s Mem. at 23, but provides no authority, and the court is not aware of any, proscribing such
a practice.
Third and finally, Plaintiff contends that Defendant’s search and subsequent production of
documents was unduly delayed, arriving the evening prior to Mr. Day’s deposition, see id. at 24,
but as Defendant points out, “the Court did not set a time for Defendant to conduct a search other
than setting the discovery deadline of November 21, 2019,” Def.’s Opp’n at 18. And according to
Defendant, “Plaintiff did not provide its proposed search criteria and terms to Defendant until . . .
8 days after the teleconference.” Id. Regarding Mr. Day’s deposition, Defendant explains that
“[b]ecause the parties had previously agreed to conduct Mr. Day’s deposition on November 15,
[in light of the timing of the production] Defendant’s counsel offered to postpone the deposition
to make Mr. Day available at another time convenient to Plaintiff and Plaintiff’s counsel.” Id. at
18
19 (citing DEX 7). It was thus Plaintiff’s choice to proceed with Mr. Day’s deposition shortly
after receiving the documents. Id. And, in any event, Plaintiff has not shown how she was actually
prejudiced by disclosure on the eve of Mr. Day’s deposition.
As Plaintiff has not shown that Defendant “fail[ed] to obey an order to provide or permit
discovery,” Fed. R. Civ. P. 37(b)(2)(A), the court declines to sanction Defendant for any alleged
violation.
B. Motions for Summary Judgment
The court turns now to the merits. As stated, Plaintiff’s Amended Complaint consists of
two counts: (1) failure to accommodate, see Am. Compl. ¶¶ 105–115, and (2) retaliation, see
Am. Compl. ¶¶ 116–123. Defendant moves for summary judgment on both counts, while Plaintiff
moves for summary judgment on Count II only. The court considers each count in turn.
1. Count I – Failure to Accommodate
To make out a prima facie case of discrimination under the Rehabilitation Act for failure
to accommodate, a plaintiff must show “(1) that [s]he was an individual with a disability within
the meaning of the statute; (2) that the employer had notice of h[er] disability; (3) that with
reasonable accommodation [s]he could perform the essential functions of the position; and (4) that
the employer refused to make such accommodations.” Scarborough v. Natsios, 190 F. Supp. 2d
5, 19 (D.D.C. 2002) (quoting Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001)). The
plaintiff bears the burden of proving each element by a preponderance of the evidence. See
Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999).
The parties agree that the first three factors are satisfied in this case. See Def.’s Mem.
at 10–11; Pl.’s Opp’n at 29–30. They part ways, however, on the fourth factor. Defendant
maintains that “there is no genuine issue of material fact that the Corps has accommodated Plaintiff
19
since November 2015, did so at all times since[,] and continues to do so today.” Def.’s Mem. at
9. Plaintiff disagrees, alleging that although the agency provided her with reasonable
accommodations for nearly one year, see Am. Compl. ¶ 109, in “October 2017, the Agency,
through Mr. Burbach, . . . revoked the reasonable accommodations it had awarded to Plaintiff,” id.
¶ 111. Specifically, Plaintiff alleges that “the Agency revoked Plaintiff[’s] [] full-time medical
telework and flexible schedule accommodations, demanding that she physically return to work and
that her attendance at any doctor’s appointments must occur through a leave request.” Id. ¶ 112.
After this revocation, Plaintiff alleges, the Agency “failed to provide any other reasonable
accommodations to Plaintiff [] or even to engage in the interactive process.” Id. ¶ 114.
In opposing Defendant’s motion for summary judgment, Plaintiff takes her claim a step
further. She maintains that Defendant also refused to accommodate her when Mr. Burbach denied
“her request for reassignment [in her initial request for accommodation] without justification,”
Pl.’s Opp’n at 31, and when he “interfered with her accommodation by demanding that [Plaintiff]
physically return to the office and repeatedly request[ed] unnecessary recertifications from her
physicians for a permanent disability,” id. at 33. But Plaintiff did not plead these claims in her
Amended Complaint. Aside from requesting reassignment as a form of relief sought, see Am.
Compl. ¶ 124b, the Amended Complaint makes no mention of Defendant’s refusal to reassign her
as denial of a reasonable accommodation. Nor does it mention Defendant’s “interference” with
Plaintiff’s reasonable accommodations, which is a separate cause of action under the
Rehabilitation Act. See Menoken v. Dhillon, 975 F.3d 1, 9 (D.C. Cir. 2020) (holding that a claim
of interference under the Rehabilitation Act is a cognizable claim separate and distinct from a
claim of retaliation or failure to accommodate). Thus, because the court must “read [Plaintiff’s]
complaint as [s]he wrote it,” the court declines to address these additional claims that are not
20
properly before the court. Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1371 (D.C.
Cir. 2008); see Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (holding
that claims raised for the first time in an opposition to a motion for summary judgment are not
properly before the court); Sharp v. Rosa Mexicano, 496 F. Supp. 2d 93, 97 n.3 (D.D.C.
2007) (finding that plaintiff may not, “through summary judgment briefs, raise [ ] new
claims”); accord Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996); Fisher v. Metro.
Life Ins., 895 F.2d 1073, 1078 (5th Cir. 1990); Calvetti v. Antcliff, 346 F. Supp. 2d 92, 107 (D.D.C.
2004).
The primary question before the court, then, is whether Plaintiff has presented sufficient
evidence to create a triable issue of fact as to whether Mr. Burbach’s October 17, 2017 letter
revoked Plaintiff’s “full-time medical telework and flexible schedule accommodations,” as
Plaintiff alleges. See Am. Compl. ¶¶ 81, 112. She has not.
Despite the rather curt language in Mr. Burbach’s October 17, 2017 letter, the record
testimony reflects that Plaintiff has never stopped teleworking full time and has always kept a
flexible schedule since she was granted accommodations in November 2015. See Pl.’s Dep. Tr.
at 98:9–99:7; Def.’s Mot., Decl. of Jeffery Burbach, ECF No. 34-3 [hereinafter Burbach Decl.],
¶ 33. Nor was Plaintiff reprimanded for not reporting to the office as ordered in Mr. Burbach’s
letter. See Burbach Decl. ¶¶ 29, 33; Pl.’s Dep. Tr. at 153:2–22. Although Plaintiff’s testimony
that Mr. Burbach has at times made Plaintiff feel compelled to take sick leave for medical
appointments is disconcerting in light of her accommodations, see Pl.’s Dep. Tr. at 103:1–18;
Am. Compl. ¶ 88, those facts do not establish that Plaintiff was prohibited from teleworking or
working a flexible schedule. Thus, even viewing the facts in the light most favorable to Plaintiff,
as the court must, there is no genuine issue of material fact as to whether Mr. Burbach’s October
21
17, 2017 letter revoked Plaintiff’s reasonable accommodations. It did not. Accordingly, the court
grants Defendant’s Motion for Summary Judgment on Count I.
2. Count II – Retaliation
The court turns now to the cross-motions for summary judgment on Plaintiff’s retaliation
claims. As a threshold matter, the court must resolve disagreement among the parties as to what
acts Plaintiff claims were retaliatory. In Count II of her Amended Complaint, Plaintiff alleged that
Defendant unlawfully retaliated against her in violation of the Rehabilitation Act by, “among other
things, continuing to discriminate against her with regard to her disabilities, denying her reasonable
accommodations, giving her a negative performance review, and denying her cash awards.”
Am. Compl. ¶ 122. Plaintiff frames her retaliation claim slightly differently in her motion for
partial summary judgment, however, asserting that she “suffered adverse actions when []
Defendant disclosed her medical information, revoked and restricted her reasonable
accommodation, lowered her performance rating, and refused to credit her sick leave.” Pl.’s Mem.
at 28. Defendant notes this discrepancy and avers that Plaintiff’s motion “does not include denial
of cash awards” as a retaliatory act. See Def.’s Opp’n at 23. Because the “denial of cash awards,”
however, is intrinsically linked to Plaintiff’s lowered performance rating, see Burbach Decl. ¶ 21
(“[A] performance cash award is meant to reward employees who meet or exceed their
performance standards . . . .”); see also Russell v. Principi, 257 F.3d 815, 818–19 (D.C. Cir. 2001)
(finding that Plaintiff had shown an adverse action where bonus size was “directly tied to her
performance rating”), the court sees no reason to consider the two acts separately. Given Plaintiff’s
framing of her retaliation claim in her motion for partial summary judgment, and considering the
facts alleged in the Amended Complaint, the court construes Plaintiff’s claim of retaliation to
include the following alleged adverse actions: (1) revocation of reasonable accommodations, see
22
Am. Compl. ¶¶ 56–88; (2) lowering of Plaintiff’s performance rating, see id. ¶¶ 89–93;
(3) disclosure of Plaintiff’s medical information, see id. ¶¶ 40–42, 102; and (4) refusal to credit
Plaintiff back annual leave erroneously deducted, see id. ¶¶ 94–100.
In Rehabilitation Act cases such as this one, where there is no direct evidence of
discrimination or retaliation, courts apply the three-step burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Solomon, 763 F.3d at 14. At step
one, “it is the Plaintiff’s burden to establish a prima facie case of discrimination by a
preponderance of the evidence.” Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002). To do so,
a Plaintiff is required to show: (1) that she “engaged in statutorily protected activity”; (2) she
“suffered a materially adverse action by her employer”; and (3) “that a [but-for] causal link
connects the two.” Solomon, 763 F.3d at 14 (cleaned up); see also Burlington N. Santa Fe Ry. Co.
v. White, 548 U.S. 53, 63–68 (2006) (articulating standard in retaliation cases); Gard v. U.S. Dep’t
of Educ., 752 F. Supp. 2d 30, 35–36 (D.D.C. 2010) (noting that, to survive motion for summary
judgment on Rehabilitation Act retaliation claim, plaintiff “must present facts from which a
reasonable jury could conclude that ‘but for’ his [prior protected activity], Defendants would not
have made it more difficult to obtain a reasonable accommodation”). Plaintiff’s burden is not
great: she “need only establish facts adequate to permit an inference of retaliatory motive.”
Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001).
If Plaintiff succeeds, step two mandates that Defendant articulate a “legitimate,
nondiscriminatory reason for its actions.” Solomon, 763 F.3d at 14 (cleaned up). “If [Defendant]
does so, the burden-shifting framework disappears.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C.
Cir. 2009) (cleaned up). At that point, “a court reviewing summary judgment looks to whether a
reasonable jury could infer retaliation from all the evidence, which includes not only the prima
23
facie case but also the evidence the Plaintiff offers to attack [Defendant’s] proffered explanation
for its action and the other evidence of retaliation.” Id.; see also Brady v. Office of the Sergeant
at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (noting that, in this context, “the prima facie case is
a largely unnecessary sideshow”).
With this legal framework in mind, the court moves to the task of applying it to the alleged
retaliatory acts in this case. Because the court already has determined that no reasonable jury could
find that Defendant revoked Plaintiff’s reasonable accommodations, see supra p. 22, Plaintiff has
failed to establish a prima facie case of retaliation as to that particular claim. The court considers
the remaining three alleged retaliatory acts in turn and finds that one of them survives summary
judgment.
a. Plaintiff’s lowered performance rating
The court turns first to Plaintiff’s claim that Defendant retaliated against her by
downgrading her performance evaluation in 2017 after she filed an EEO complaint. See Am.
Compl. ¶¶ 89–93. In response, Defendant contends that the evaluation rating that Plaintiff received
was “based on Plaintiff’s performance” and not “based on her disability, her request for
accommodations, or the fact that she was being accommodated.” Def.’s Opp’n at 31. Defendant
offers the declaration of Plaintiff’s supervisor, Mr. Burbach, who explains the reasons for giving
Plaintiff the rating that he did. He first provides background on the evaluation system in place at
the time, explaining that “[e]mployees received a rating ranging from 1 to 5” based on the
following criteria:
1 being fully successful excellence (75% or more performance
objectives being met or exceeded); 2 being fully successful
excellence (26-74% objectives being met); 3 successful; 4 needs
improvement; and 5 that employee required significant
improvement because one or more objective[s] were not being met.
24
Burbach Decl. ¶ 6.
Although Plaintiff “met or exceeded her performance standards” in her previous
performance evaluations, Mr. Burbach says “[he] began to notice a change in [her] performance
in 2017.” Id. ¶ 8. “During this time,” he says, “[the Corps] and DOL had an increase in work to
meet mission standards in response to emergency relief work after Hurricane Maria.” Id. ¶ 9. As
a result, “[m]any employees . . . took on additional tasks outside their normal scope of work and
volunteered for emergency details in Puerto Rico and other affected states.” Id. ¶ 10. “Despite
the increase in emergency details and work,” Mr. Burbach says, “[P]laintiff did not take on or offer
to take on additional tasks and/or duties within the confines of her accommodations.” Id. ¶ 11.
“Therefore,” according to Mr. Burbach, “[h]e determined that while [Plaintiff] met the vast
majority of her performance objectives, she did not go above and beyond her objectives like her
peers in the Directorate.” Id. ¶ 12. Other factors that Mr. Burbach says contributed to the lowered
rating included Plaintiff’s “unwillingness to engage with her teammates” and to participate in
various scheduled and impromptu meetings. Id. ¶¶ 13–15.
Because Defendant has offered a legitimate, non-retaliatory reason for his action, the only
question the court need resolve is whether Plaintiff has “produced sufficient evidence for a
reasonable jury to find that [Defendant’s] asserted non-[retaliatory] reason was not the actual
reason and that [Defendant] intentionally [retaliated] against [Plaintiff] on the basis of” her
protected activity. Brady, 520 F.3d at 494. Although a close call, the court finds that she has, for
several reasons.
First, a reasonable juror could perceive enough disparity between Mr. Burbach’s
description of Plaintiff’s performance and the objective rating criteria to cast doubt on the reasons
given. The criteria states that a rating of “1” is warranted where an employee meets or exceeds
25
“75% of their objectives.” Burbach Decl. ¶ 6. Both Plaintiff’s and Mr. Burbach’s deposition
testimony reflect that Plaintiff met at least the “vast majority of her performance objectives,” for
the time period at issue, Burbach Decl. ¶ 12, and that her written work product did not diminish
relative to years prior when she received the highest rating, see Burbach Dep. Tr. at 49:16–18;
Pl.’s Dep. Tr. at 36:19–37:07. Specifically, Mr. Burbach testified that as of January 2017 (three
months into the rating period), he could not recall that anything had changed with Plaintiff’s work
performance, see Burbach Dep. Tr. at 54:20–22, and through the remainder of the rating period,
he could not recall what specifically had changed with respect to Plaintiff’s engagement with staff
and production of work product, id. 68:14–22. Mr. Burbach’s primary complaints about Plaintiff’s
work performance relate almost entirely to her inability to be physically present in the office—
something her disability prevents. See id. at 48:19–49:8, 63:15–64:14, 66:22–67:7, 70:5–71:11.
Although Mr. Burbach notes that for the 2017 evaluation period there were increased
responsibilities associated with Hurricane Maria for which some employees took on additional
responsibilities and volunteered to travel, see id. at 67:15–20, 69:1–70:8; Burbach Decl. ¶¶ 9–10,
the testimony reflects that the work associated with that emergency would not have fallen within
Plaintiff’s area of responsibility as a non-logistician, see Pl.’s Dep. Tr. at 62:3–12; Burbach Decl.
¶ 10, and Plaintiff of course was unable to travel to Puerto Rico given her ongoing medical
treatment. Nevertheless, Mr. Burbach cites the emergency relief work as indication that Plaintiff
did not “go above and beyond her objectives like her peers.” Burbach Decl. ¶ 12. Going above
and beyond would seem to indicate accomplishing over 100% of an employee’s objectives, but
according to the objective criteria, an employee is eligible for the highest rating upon completion
of 75% of her objectives. See id. ¶ 6.
26
Any doubt created by the perceptible disparity between the reasons offered for Plaintiff’s
rating and the objective criteria is compounded by the fact that Mr. Burbach originally lowered
Plaintiff’s rating by two points, giving her a “3.” See Burbach Dep. Tr. at 77:11–78:2. The fact
that Mr. Burbach ultimately raised Plaintiff’s rating from a “3” to a “2” after discussion with
Plaintiff could cut either way in terms of his motivation, making it a question best suited for a jury.
Second, the context and timing of Plaintiff’s degraded performance evaluation casts further
doubt on the reasons given. The record shows that for at least three consecutive years, including
the first year Plaintiff was on accommodations following her diagnosis, Plaintiff received the
highest rating that could be achieved. PEX 14 at 311; Burbach Decl. ¶ 8. It was not until the first
evaluation following Plaintiff’s EEO complaints, see PEX 14 at 313 (showing that Plaintiff filed
formal and informal EEO complaints in November and December 2016), and just under two
months after Plaintiff told Mr. Burbach that her accommodations were “now a legal matter,” DEX
13 at 36, that she received a lower rating, see Pl.’s Dep. Tr. at 35:13–19; see also Pl.’s SoF ¶ 57
(“On December 14, 2017, Burbach downgraded [Plaintiff’s] performance [rating].”); Burbach
Dep. Tr. at 77:11–19 (discussing December 15, 2017 email from Plaintiff to Mr. Burbach
regarding her lowered performance rating). To be sure, “just because [an] employee was a good
performer at an earlier time” does not mean that an employer’s description of their performance
as unsatisfactory at a later time is pretext. Hicks v. Gotbaum, 828 F. Supp. 2d 152, 163 (D.D.C.
2011). Nor is temporal proximity alone enough to prove pretext. See Singletary v. District of
Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003). Nevertheless, the fact remains that the lower 2017
evaluation coincides with Plaintiff’s filing of her complaints. A reasonable jury could consider
this temporal proximity, along with other evidence, as demonstrating a retaliatory motive for
lowering her rating.
27
Third and finally, all of the above took place against a backdrop of what a reasonable jury
could perceive as increasing hostility directed at Plaintiff by Mr. Burbach, enough so that Plaintiff
filed several complaints with the EEO office. According to Plaintiff, Mr. Burbach’s demeanor
toward her began to change around April 2016, see Pl.’s Dep. Tr. at 107:8–15, and the record
reflects that the tension between the two escalated throughout the rating period, eventually
reaching a flash point with Mr. Burbach’s letter in October 2017, see Pl.’s Dep. Tr. at 107:10–20;
DEX 5 at 14. Despite repeat explanations from Plaintiff’s doctors that her cancer was stage IV
and incurable, Mr. Burbach persisted with increasingly insensitive, if not aggressive, requests for
Plaintiff to provide updates on her medical condition and her forecasted return to the office. See,
e.g., DEX Nos. 2–13 at 6–36; see also Pl.’s Dep. Tr. at 107:10–20 (“His calls became progressively
more aggressive in tone and he continuously asked for a specific date of when [Plaintiff] would
return.”). Although periodic check-ins are surely an appropriate component of evaluating the
continued need for accommodation, a reasonable jury could construe Mr. Burbach’s
communications with Plaintiff as increasingly insensitive and hard edged, such that his claim of
Plaintiff’s reduced performance could be viewed as a pretext for retaliation.
In sum, the court reiterates that this is a close case, and it is sensitive to the fact that a court
may not serve as a “super-personnel department that reexamines an entity’s business decisions.”
Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (internal quotation marks omitted); see
also Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982) (explaining that a district court may
not “second-guess an employer’s personnel decision absent demonstrably discriminatory
motive”). The question at this juncture is whether it would be unreasonable for a jury to reject
Mr. Burbach’s explanation for Plaintiff’s lowered performance rating and infer discrimination
based on the record as a whole. It would not be. Accordingly, the court denies Plaintiff’s and
28
Defendant’s motions for summary judgment on this aspect of Plaintiff’s retaliation claim, which
must proceed to a jury.
b. Disclosure of Plaintiff’s medical information
Plaintiff next contends that Defendant retaliated against her by the unauthorized disclosure
of her personal medical information. See Am. Compl. ¶¶ 40–42, 102. Here, Defendant denies the
allegation altogether, arguing that Plaintiff has failed to establish a prima facie case of retaliation.
See Def.’s Opp’n at 25–30. The court agrees.
Plaintiff first learned of her cancer diagnosis on November 6, 2015, Pl.’s Dep. Tr.
at 50:17–20, after which she notified Ms. Taswell, id. at 72:15–16, though she does not specify
the date of that notification. She further asserts that she first engaged in protected activity on
November 13, 2015, when she reached out to Mr. Newton to initiate her request for reasonable
accommodation. See Pl.’s SoF ¶ 19; Pl.’s Reply at 8 (identifying the date of her “protected
activity” as November 13, 2015, the day she “initiated her request for accommodations”). On that
very same day, Plaintiff claims, she spoke to Ms. Taswell, who told Plaintiff that she had shared
the news of her cancer diagnosis with another employee, Marti Sedgwick. See Pl.’s Dep. Tr. at
75:10–17. This timeline is critical to Plaintiff’s prima facie case. Plaintiff must show not only
that she was “engaged in statutorily protected activity” at the time of the disclosure but also that
Ms. Taswell was aware that Plaintiff had engaged in that protected activity and that it was the but-
for cause of her disclosure of Plaintiff’s medical information. See Solomon, 763 F.3d at 14.
Both parties agree that the protected activity at issue began with Plaintiff’s call to
Mr. Newton on November 13, 2015. See Def.’s Resp. to Pl.’s SoF ¶ 19; Pl.’s Reply at 8. Plaintiff
claims that a “reasonable juror could conclude that Taswell ha[d] spoken to [the other employee]
that very same day.” Pl.’s Reply at 8. But jurors are not permitted to speculate, and Plaintiff has
29
offered no evidence establishing that, on November 13, 2015, Ms. Taswell both spoke to Mr.
Newton about Plaintiff’s request for accommodation (thus learning about her protected activity)
and disclosed Plaintiff’s cancer diagnosis to Ms. Sedgwick before she spoke to Plaintiff. In fact,
Ms. Taswell testified that she became aware that Plaintiff had reached out to Mr. Newton only
after Mr. Newton reached out to Mr. Burbach about Plaintiff at a later date. See Def.’s Opp’n,
Dep. of Belinda Taswell, ECF No. 38-5, at 97:12–19. Plaintiff therefore offers no more than
speculation that her protected activity preceded, and was the cause of, the unconsented disclosure
of her medical condition. The court enters summary judgment in favor of Defendant on this aspect
of her retaliation claim.
c. Refusal to Credit Leave
Finally, Plaintiff claims that Defendant retaliated against her by denying her
reimbursement for leave she did not take when the federal government was closed for a blizzard
in 2016. See Am. Compl. ¶¶ 94–100. Plaintiff asserts that, as a full-time teleworker, she was
required to, and did, work a full 44-hour week despite the government shut down. See Pl.’s Dep.
Tr. at 155:22–156:19. When she discovered that she had “mistakenly” been charged leave, id.
at 156:25, she says she requested that it be fixed, and Mr. Burbach and Ms. Taswell ultimately
refused to refund her the leave time, id. at 158:20–23.
In response, Defendant provides a legitimate, non-discriminatory reason for not
reimbursing Plaintiff for the leave time at issue: an independent audit was conducted, which
determined that Plaintiff was on leave during the time in question. See Def.’s Opp’n at 32–33
(citing Pl.’s Dep. Tr. at 157). Plaintiff does not dispute that an audit was conducted. Pl.’s Dep.
Tr. at 157:11–22. Instead, she disagrees with Defendant’s characterization of the findings of that
audit, asserting that the audit concluded she was “put on leave,” not that she “took leave.” Pl.’s
30
Opp’n at 44 (citing Pl.’s Dep. Tr. at 157:15–17). Either way, Plaintiff has failed to produce
“sufficient evidence for a reasonable jury to find that” Defendant “intentionally [retaliated] against
[her] on the basis of” her protected activity. Brady, 520 F.3d at 494. Plaintiff testified that she did
not know who put her on leave. Pl.’s Dep. Tr. at 157:16–22. And she has not otherwise shown
that Mr. Burbach and Ms. Taswell were doing anything other than adhering to agency policy by
implementing the results of the audit and not reimbursing Plaintiff leave time. Thus, the court
finds Defendant is entitled to summary judgment on Plaintiff’s claim that Defendant retaliated
against her by not reimbursing Plaintiff 44 hours of leave time.
V. CONCLUSION AND ORDER
For the foregoing reasons, Plaintiff’s Motion for Partial Summary Judgment and Sanctions
for Spoliation of Evidence, ECF No. 33, is denied, and Defendant’s Motion for Summary
Judgment, ECF No. 34, is denied in part and granted in part.
The parties shall appear for a telephonic status conference to discuss a schedule for further
proceedings on January 20, 2021, at 10:45 a.m.
Dated: January 5, 2021 Amit P. Mehta
United States District Court Judge
31