Kennedy v. Dynamic-Pro, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DIAMOND KENNEDY,
Plaintiff,
v. Civil Action No. 19-2212 (RDM)
(consolidated with No. 19-2666 (RDM))
PETE BUTTIGIEG, Secretary of United
States Department of Transportation,1
Defendant.
MEMORANDUM OPINION AND ORDER
Although Plaintiff Diamond Kennedy originally brought these consolidated actions
against the Secretary of Transportation (hereinafter the “Department”) and a Department of
Transportation contractor, Dynamic-Pro, Inc. (hereinafter “Dynamic-Pro”), the parties have
stipulated to the dismissal of Dynamic-Pro, Min. Order (April 26, 2021), Kennedy has
voluntarily dismissed two counts against the Department, Min. Order (Feb. 12, 2021), and, most
recently, she withdrew an additional count against the Department, Dkt. 39 at 8. As a result, all
that remains are three claims against the Department: Count I, which alleges that Kennedy was
subjected to a hostile work environment based on gender, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); Count II, which alleges that she was
subjected to a retaliatory hostile work environment and retaliatory termination, also in violation
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The current Secretary is automatically substituted for his predecessor. Fed. R. Civ. P. 25(d).
On December 13, 2019, the Court consolidated Kennedy v. Dynamic-Pro, Inc., No. 19-cv-2212,
and Kennedy v. Chao, No. 19-cv-2666, pursuant to Federal Rule of Civil Procedure 42(a), and
directed the parties to file all pleadings and motions in No. 19-cv-2212, Min. Order (Dec. 13,
2019).
of Title VII; and Count III, which alleges that the Department failed to accommodate her
disability, in violation of the Rehabilitation Act, 29 USC § 701 et seq.
The Department now moves for summary judgment on each of Kennedy’s remaining
claims. Dkt. 32. For the following reasons, the Court will GRANT in part and DENY in part
the Department’s motion.
I. BACKGROUND
For purposes of resolving the motion for summary judgment, the Court takes “the facts in
the record and all reasonable inferences derived therefrom in a light most favorable” to Kennedy,
the non-moving party. Coleman v. Duke, 867 F.3d 204, 209 (D.C. Cir. 2017) (quoting Al-Saffy
v. Vilsack, 827 F.3d 85, 89 (D.C. Cir. 2016)).
A. Factual Background
1. Kennedy’s employment at the FRA
The Federal Railroad Administration (“FRA”) is an agency within the Department of
Transportation. Dkt. 39-6 at 1–2 (Pl.’s Statement of Material Facts in Dispute (“Pl.’s SDMF”)
¶ 3); Dkt. 42-1 at 2 (Def.’s Response to Pl.’s SDMF (“Def.’s Response”) ¶ 3). Dynamic-Pro is a
government contractor, which provides administrative support to government agencies, including
the FRA. Dkt. 32-2 at 1 (Def.’s Statement of Undisputed Material Facts (“SUMF”) ¶ 2); see
also Dkt. 39-7 at 1 (Pl.’s Response to SUMF (“Pl.’s Response”) ¶ 2). In August 2017, Dynamic-
Pro offered Diamond Kennedy a position as an administrative assistant. Dkt. 32-2 at 1 (Def.’s
SUMF ¶ 1); see also Dkt. 39-7 at 1 (Pl.’s Response ¶ 1). The next month, Kennedy started work
at the FRA as a contract Administrative Assistant in the Office of the Administrator, where she
worked for Patrick Warren, the FRA’s Executive Director. Dkt. 32-2 at 2 (Def.’s SUMF ¶ 4);
see also Dkt. 39-7 at 1 (Pl.’s Response ¶ 4). A short time later, on November 20, 2017, Kennedy
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was reassigned to the FRA’s Government Affairs Office, where she provided administrative
support for Christopher Hess, the FRA’s Director of Administrative Affairs. Dkt. 32-2 at 3
(Def.’s SUMF ¶¶ 6–9); see also Dkt. 39-7 at 2 (Pl.’s Response ¶¶ 6–9).
For budget reasons, Kennedy was subsequently transferred to the position of
Administrative Assistant II in the FRA’s Office of the Chief Financial Officer (“RCFO”), where
she started work on July 16, 2018. Dkt. 39-6 at 15 (Pl.’s SDMF ¶¶ 45–46); Dkt. 42-1 at 25–26
(Def.’s Response ¶¶ 45–46). The head of RCFO was Rebecca Pennington, and Kennedy’s new
Contracting Officer Representative (“COR”) was Yulita O’Neal. Dkt. 39-6 at 15–16 (Pl.’s
SDMF ¶¶ 46, 48); Dkt. 42-1 at 26–27 (Def.’s Response ¶¶ 46, 48).
2. Alleged sexual harassment
The events leading to this case began in the fall of 2017, when Kennedy was transferred
to the Government Affairs Office. That office shared an office suite with the Office of Public
Affairs, and the Deputy Director of the Office of Public Affairs was Marc Willis. Dkt. 32-2 at 3
(Def.’s SUMF ¶ 10); see also Dkt. 39-7 at 2 (Pl.’s Response ¶ 10). Kennedy alleges that within a
month of starting at Government Affairs, Willis began to sexually harass her. Dkt. 39-6 at 5
(Pl.’s SDMF ¶ 17); Dkt. 42-1 at 7 (Def.’s Response ¶ 17).
Kennedy recalls the first alleged incident with Willis: When she was leaving the office,
Willis was “ogling [her] body,” and, when she returned, her co-worked Ashante Jorden told
Kennedy that Willis “asked if [Kennedy] was a stripper” because her “butt is big.” Dkt. 39-1 at
181 (Pl.’s Ex. 4, Kennedy Dep. at 57:19–58:4). Kennedy testified that Willis engaged in similar
ogling on five or six other occasions. Id. at 183–84 (Pl.’s Ex. 4, Kennedy Dep. at 68:13–69:15).
When asked about this by an Equal Employment Opportunity (“EEO”) investigator, Willis did
not dispute that he ogled Kennedy and merely stated: “I am a heterosexual male, I may have
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noticed. But I did not laugh[,] and I do not make comments about someone’s figure.” Id. at
1584 (Pl.’s Ex. 19). According to Kennedy, “when [she] was about to move over to
Government Affairs[,]” Willis “kept coming up to [her] and telling [her] the whole week that
[she] was getting ready to work for him and [she] was going to be his assistant,” id. at 185 (Pl.’s
Ex. 4, Kennedy Dep. at 74:10–74:22), although she was ultimately assigned to work as Chris
Hess’s assistant, see Dkt. 32-2 at 3 (Def.’s SUMF ¶¶ 6–9); see also Dkt. 39-7 at 2 (Pl.’s
Response ¶¶ 6–9). Willis allegedly told Kennedy that Hess only wanted her in his office
“because of [her] looks.” Dkt. 39-1 at 185 (Pl.’s Ex. 4, Kennedy Dep. at 74:4–75:5).
Kennedy also alleges that, on one occasion, Willis stopped by her desk to ask for a piece
of gum “and said he might not know when [she] will want a kiss from him.” Id. at 184 (Pl.’s Ex.
4, Kennedy Dep. at 70:24–71:8). Later in that same interaction, Willis purportedly told Kennedy
that “he was jealous of the [hickies] on [her] neck and that he wasn’t the one to give them to
[her] or put them there.” Dkt. 39-1 at 186 (Pl.’s Ex. 4, Kennedy Dep. at 77:16–78:10). Willis
admits to making a different comment about Kennedy’s neck, claiming that he “did tell her she
needed to cover up the marks on her neck with makeup because they were unprofessional.” Dkt.
39-1 at 1585 (Pl.’s Ex. 19). On another occasion, Willis asked to get in front of Kennedy in the
line for the printer. Kennedy responded, “in a ‘non-sexual manner,’” “ok, you can get in front of
me but it may cost ya,” to which Willis allegedly responded “‘I am willing to pay for certain
things.’” Dkt. 39-1 at 184 (Pl.’s Ex. 4, Kennedy Dep. at 72:11–19).
Kennedy made other allegations against Willis. In a chat message with a co-worker,
Antoinette Jensen, for example, Kennedy told Jensen that Willis “tell[s me] im beautiful all the
time.” Dkt. 39-1 at 1573 (Pl.’s Ex. 17). At her deposition in this case, she testified Willis told
her “how nice [she] look[ed] in [her] jeans on Fridays” and told her “how pretty [she is] and that
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if he was [her] age he would date [her.]” Dkt. 39-1 at 185 (Pl.’s Ex. 4, Kennedy Dep. at 75:9–
76:4). She also testified that Willis told Jensen that he was “a dirty old man” who “grabb[ed]”
nurses’ “butts.” Dkt. 39-1 at 185 (Pl.’s Ex. 4, Kennedy Dep. at 76:8–24). Willis admitted to
making a “similar comment” in the workplace. Dkt. 39-1 at 1380–81 (Deposition of Marc Willis
at 89:10–90:14).
When asked at deposition whether others were in earshot when Willis made inappropriate
comments to her, Kennedy responded, “[h]e would only do it when I was by myself.” Dkt. 39-1
at 234 (Pl.’s Ex. 4, Kennedy Dep. at 269:6–9). And when asked, “[o]ut of all the times that you
were alone with him . . . [,] how often would he make a comment that you would consider to be
improper or a form of sexual harassment,” she responded, “[p]retty much every time, which was
far and few because I was rarely by myself.” Dkt. 39-1 at 234 (Pl.’s Ex. 4, Kennedy Dep. at
269:10–16).
Shortly after her reassignment to RCFO, Kennedy and Jensen met with the FRA’s EEO
Program Manager, Shandra Whiting, to discuss Willis’ conduct. Dkt. 32-2 at 12 (Def.’s SUMF
¶ 38); see also Dkt. 39-7 at 10 (Pl.’s Response ¶ 38). A few days later, on July 25, 2018, the
Office of Civil Rights completed its inquiry and its director, Calvin Gibson, submitted a
recommendation to Matthew Sturges, FRA’s Deputy Administrator. Dkt. 32-2 at 16 (Def.’s
SUMF ¶ 49); see also Dkt. 39-7 at 16–17 (Pl.’s Response ¶ 49). Gibson recommended that
because Willis “ha[d] no prior allegations, his supervisor would call the situation to his attention
without disclosing who complained.’” Dkt. 32-2 at 16–17 (Def.’s SUMF ¶ 49); see also Dkt. 39-
7 at 16–17 (Pl.’s Response ¶ 49). There is evidence, however, that Willis did learn that Kennedy
was his accuser, although it is unclear how he learned that Kennedy had complained about his
behavior. See Dkt. 39-1 at 188 (Kennedy Dep. at 88:20–25); Dkt. 39-6 at 28 (Pl.’s SDMF ¶ 97).
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On July 30, 2018, Gibson met with Willis concerning the allegations, which Willis
denied, except for the “dirty old man” comment. Dkt. 32-2 at 17 (Def.’s SUMF ¶ 51); see also
Dkt. 39-7 at 17 (Pl.’s Response ¶ 51). On July 31, 2018, Whiting emailed Kennedy and Jensen
to tell them “that the issue you both informed me of on Friday, July 20, 2018 was looked into
and addressed accordingly.” Dkt. 32-2 at 17 (Def.’s SUMF ¶ 52); see also Dkt. 39-7 at 18 (Pl.’s
Response ¶ 52). It is undisputed that after Kennedy reported Willis’ inappropriate behavior, no
additional incidents of sexual harassment occurred. Dkt. 32-2 at 17 (Def.’s SUMF ¶ 53); see
also Dkt. 39-7 at 18 (Pl.’s Response ¶ 53).
3. Kennedy’s performance, improvement plan, and termination
The Department denies that it took any adverse action against Kennedy in retaliation for
her accusations against Willis, and it instead maintains that Kennedy was a subpar employee
who could not handle the responsibilities of her assignment to RCFO. According to the
Department, various FRA employees raised concerns about Kennedy’s performance as early as
December 2017, while she was still working in the Government Affairs office. One employee,
for example, complained about Kennedy’s failure to reschedule a meeting, and a feedback form
provided to Dynamic-Pro described concerns about Kennedy’s ability to schedule and coordinate
meetings. Dkt. 32-2 at 4–5 (Def.’s SUMF ¶¶ 12–13); see also Dkt. 39-7 at 3 (Pl.’s Response
¶¶ 12–13). The FRA Contracting Officer Representative (“CRO”) responsible for the Dynamic-
Pro account at the time, Maryanne Polkiewicz, told Dynamic-Pro in December 2017 that the
Department was considering replacing Kennedy, although the matter was apparently dropped
after further discussion between the Department and Dynamic Pro. Dkt. 32-2 at 5 (Def.’s SUMF
¶¶ 14); see also Dkt. 39-7 at 4 (Pl.’s Response ¶¶ 14). There were a couple of other incidents in
February (working 9 instead of 8 hours on two days) and March (trying to delegate lead
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responsibility to arrange a “meet and greet”) 2018. Dkt. 32-2 at 5–6 (Def.’s SUMF ¶¶ 15–16);
see also Dkt. 39-7 at 5 (Pl.’s Response ¶¶ 15–16).
Other evidence, however, suggests that Kennedy was a regarded as a stronger performer
before she was transferred to RCFO. Perhaps most significantly, there is some indication that
Hess—who Kennedy supported during the time she worked in the Government Affairs Office—
did not want Kennedy to leave and, indeed, made efforts to keep her as his assistant. Dkt. 39-1
at 191 (Kennedy Dep. at 99:17–18); 39-1 at 333 (Perez Dep. at 48:8–11). This is consistent
with feedback that Lee Anderson, the responsible FRA contracting officer, provided to Dynamic-
Pro in December 2017, which noted that Kennedy and others were “very professional and
produce[d] good work” and reported that the FRA was “very pleased with their performance,”
but recommend that, “when they have completed work assignments and have bandwidth for
additional work,” they should convey their availability. Dkt. 39-2 at 639 (Ex. 32). When
Anderson reported to Kennedy’s Dynamic-Pro supervisor, Michael Perez, in August 2018 that
the FRA had concerns about Kennedy’s performance, moreover, Perez expressed surprise, noting
that Kennedy had a strong track record and had been at RCFO for only a short time. Dkt. 39-3 at
128 (Ex. 50).
The principal allegations of poor performance—the allegations more pertinent to this
case—occurred over the summer of 2018, after Kennedy transferred to RCFO. Yvette Noah,
Dynamic-Pro’s Human Resources (“HR”) Manager, testified at deposition that Kennedy “would
take a long time to get tasks done” and that, “[i]f she did get them done, she would not
communicate well from what I’ve heard with the FRA staff, but she wouldn’t communicate well
with me as an HR manager. She wouldn’t communicate well with Michael Perez as her project
manager. She would send very unprofessional e-mails,” which contained typos and grammatical
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errors. Dkt. 32-4 at 772–73 (Noah Dep. at 61:21–62:19). When asked whether Kennedy “was
performing the work that was required of her as an Admin II as FRA,” Noah responded, “No.”
Dkt. 32-4 at 774 (Noah Dep. at 63:2–6).
Pennington, the Department’s Chief Financial Officer, submitted a declaration attesting
that “the Staff Directors and the Contracting Officer Representative, Yulita O’Neal, raised
concerns and complaints with Ms. Kennedy’s work performance. The issues included, but were
not limited to, Ms. Kennedy’s lack of initiative, lack of attention to detail, and inability to
follow-up on assignments.” Dkt. 32-4 at 2128 (Declaration of Rebecca Pennington ¶ 7).
Pennington further attested that Kennedy “could not complete simple tasks, such as updating the
[Office] calendar and making photocopies[,]” “did not properly maintain the [Office]
calendar[,]” “failed to acknowledge emails and assignments she received, which caused
confusion as to whether she had completed the assignment[,]” and that her “attitude at work was
off-putting and her body language discouraged people from approaching her and giving her
assignments or asking her work questions.” Dkt. 32-4 at 2128–29 (Pennington Decl. ¶¶ 8–11).
O’Neal raised similar concerns in her declaration and also claimed that “Kennedy was
infrequently at her desk when [Staff Directors] wanted to give her assignments.” Dkt. 32-4 at
1694–95 (Declaration of Yulita O’Neal ¶¶ 8–9, 12).
On August 9, 2018, Noah met with O’Neal to discuss Kennedy’s performance. Dkt. 39-6
at 35 (Pl.’s SDMF ¶ 116); Dkt. 42-1 at 57 (Def.’s Response ¶ 116). Noah’s notes from that
meeting indicate that O’Neal was concerned that Kennedy had been arriving to work about
twenty minutes late and that she was failing to send email acknowledgments to work requests
from leadership. Dkt. 39-6 at 35 (Pl.’s SDMF ¶ 117); Dkt. 42-1 at 57 (Def.’s Response ¶ 117).
Kennedy subsequently explained to Noah that she was arriving to work on time but had to spend
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the morning in the restroom because she was suffering from hyperemesis gravidarum (i.e.,
extreme morning sickness) and that she would stay late on those days. Dkt. 39-6 at 35 (Pl.’s
SDMF ¶ 118); Dkt. 42-1 at 57 (Def.’s Response ¶ 118). “Kennedy agreed to stop by O’Neal’s
office as soon as she arrived to let her know that she was in and [to] adjust her written schedule
accordingly on the days she stayed late.” Dkt. 39-6 at 35 (Pl.’s SDMF ¶ 119); see also Dkt. 42-1
at 57 (Def.’s Response ¶ 119). She also agreed to start sending email acknowledgments to tasks.
Dkt. 39-6 at 35–36 (Pl.’s SDMF ¶ 120); Dkt. 42-1 at 57–58 (Def.’s Response ¶ 120).
There is evidence that Kennedy’s performance improved in certain respects. On August
22, 2018, for example, O’Neal sent Anderson an email noting that she had “seen improvements”
relating to Kennedy’s “[d]aily arrival time to work.” Dkt. 39-3 at 5 (Ex. 42). O’Neal also
conceded in deposition that she had seen “improvement” in Kennedy’s acknowledgment that she
had received requests to schedule meetings. Dkt. 39-2 at 393–141 (O’Neal Dep. at 138:4–
141:9); see also Dkt. 39-3 at 83–124 (Ex. 49) (collecting emails). The FRA expressed concerns,
instead, about “her number of times of being out of the office,” and that “she seems quite
overwhelmed with the workload.” Dkt. 32-7 at 260 (Def.’s Ex. 122).
On August 16, 2018, O’Neal wrote to the Department’s Contracting Officer Lee
Anderson, stating that Pennington “would like for [Dynamic-Pro] to obtain resumes for potential
candidates to replace” Kennedy due to her tardiness and lack of attendance. Dkt. 32-7 at 261
(Def.’s Ex. 122). On August 22, 2018, O’Neal again wrote to Anderson, indicating that
Kennedy “is not working out in [the office, and that] the senior managers do not wish to keep her
during the interim of recruitment for a replacement.” Dkt. 32-5 at 464–65 (Def.’s Ex. 56). The
next day, Anderson wrote to Perez and Noah, stating that the office “would like to replace”
Kennedy, indicating that “[s]he apparently cannot handle the [Office’s] workload,” and
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“requesting [that] tomorrow be her last day.” Dkt. 32-5 at 470 (Def.’s Ex. 57). Perez responded
that Kennedy had succeeded in prior roles in the Department and requested that Dynamic-Pro be
allowed to develop a Performance Improvement Plan (“PIP”) for Kennedy. Dkt. 32-5 at 469–70
(Def.’s Ex. 57). On August 29, Anderson emailed Perez and Noah to inform them that Kennedy
would remain in the office, subject to a thirty-day PIP. Dkt. 32-5 at 483 (Def.’s Ex. 61).
On August 30, 2018, Dynamic-Pro notified Kennedy that she was being placed on a PIP
starting September 1. See Dkt. 32-5 at 502 (Def.’s Ex. 67). Also on August 30, Kennedy met
with Whiting, this time to complain about retaliation by Willis and O’Neal. See Dkt. 39-6 at 51
(Pl.’s SDMF ¶ 175); see also Dkt. 42-1 at 82 (Def.’s Response ¶ 175). Later that day, Kennedy
sent Whiting a follow-up email summarizing the events relating to her retaliation claim. See
Dkt. 39-4 at 30 (Pl.’s Ex. 62). In the email, Kennedy noted that she had been criticized for her
“not responding ‘ok’ back to attendance calendar updates, [i]ncorrect entry on shared attendance
calendar . . . [,] being 15-20 minutes late to my desk seat (due to my hyperemesis pregnancy),”
scheduling a meeting incorrectly, and scheduling travel on one occasion for Chris Hess (who was
no longer her boss). Id. She further explained that she “was told FRA would like to drop” her
even though she had “received nothing but compliments in my prior two offices.” Id. Whiting
testified at deposition that, aside from advising Kennedy about the EEO process, she could not
recall any further efforts the FRA took to investigate Kennedy’s claims of retaliation. Dkt. 39-2
at 721–22 (Whiting Dep. at 68:22–69:4).
Kennedy contends that O’Neal never provided her with the opportunity to succeed under
the PIP. On September 17, 2018, for example—just two weeks into the 30-day PIP period—
O’Neal shared with Pennington a draft email that she planned to send to Lee Anderson, who was
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responsible for the Dynamic Pro contract. See Dkt. 39-3 at 137 (Pl.’s Ex. 52). The draft email,
which Anderson saw for the first time at his deposition, stated:
Lee,
Based on the performance issues raised, there has been little improvement at this
point. We would like to request to have [Kennedy] removed from this contract.
See Dkt. 39-3 at 137 (Pl.’s Ex. 52). Kennedy also points out that O’Neal was aware at the time
the PIP was put in place that a “complication associated with [Kennedy’s] pregnancy . . . was
causing her to be late for work,” Dkt. 39-2 at 476 (Pl.’s Ex. 27, O’Neal Dep. at 221:5–17), but
O’Neal “made no effort to have [the late arrival] section removed” from the PIP, Dkt. 39-6 at 57.
And Kennedy stresses that while criticizing her performance, O’Neal rebuffed her request to
receive additional training on the Department’s acquisition system, PRISM. See Dkt. 39-6 at
61–63 (Pl.’s SDMF ¶¶ 215–223).
Two days before the end of the PIP period, on September 28, 2018, O’Neal emailed
Anderson, stating: Dynamic-Pro “hasn’t met our requirements for the level 2 admin assistant
which is continuing to present a hardship for the office. There hasn’t been a great deal of
improvement in the current situation and [we] respectfully request DPI remove the current
candidate, until such time that a qualified candidate can be hired.” Dkt. 39-5 at 2 (Pl.’s Ex. 81).
Then, on October 1, 2018, Brittany Alvarenga, the Contracting Officer who took over for
Anderson, sent an email to Perez, writing, “I am currently acting for Lee and it has come to my
attention that a replacement is needed for [Kennedy] effective immediately. I know she was put
on a PIP in hopes things would improve, but unfortunately things have not.” Dkt. 39-5 at 8 (Pl.’s
Ex. 83). That same day, Kennedy was both removed from her position at the Department and
terminated by Dynamic-Pro. See Dkt. 39-5 at 11 (Pl.’s Ex. 84).
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4. Kennedy’s accommodations requests
Separately, in July 2018, Kennedy informed Pennington, O’Neil, and Noah that she was
pregnant. During her pregnancy, Kennedy suffered from “hyperemesis gravidarum, best
characterized as an extreme form of morning sickness that can occur at any time during the day
or night.” Dkt. 39-6 at 18 (Pl.’s SDMF ¶ 57); see also Dkt. 42-1 at 29 (Def.’s Response ¶ 57).
“The condition causes headaches, stomach irritability, nausea, and vomiting and requires
frequent trips to the restroom to alleviate symptoms.” Dkt. 39-6 at 18 (Pl.’s SDMF ¶ 58); see
also Dkt. 42-1 at 29 (Def.’s Response ¶ 58). Kennedy was admitted to the hospital for the
condition on several occasions. Dkt. 39-6 at 18 (Pl.’s SDMF ¶ 59); see also Dkt. 42-1 at 29
(Def.’s Response ¶ 59).
On September 5, 2018, Kennedy requested various accommodations for this condition.
In particular, she requested: (1) a desk near the restroom, and (2) permission to telework on days
when her condition was most affecting her. Dkt. 39-6 at 52 (Pl.’s SDMF ¶¶ 179–80); see also
Dkt. 42-1 at 83–84 (Def.’s Response ¶¶ 179–80). She provided the Department a note from her
treating physician diagnosing the condition. Dkt. 39-6 at 53 (Pl.’s SDMF ¶ 181); see also Dkt.
42-1 at 84 (Def.’s Response ¶ 181). On September 28, 2018, Perez, who was still serving as
Kennedy’s Dynamic-Pro supervisor, emailed Kennedy to let her know that the request for a desk
closer to the bathroom had been granted and that FRA could offer her 5-minute breaks once an
hour; but the FRA would permit Kennedy to telework only if Dynamic-Pro could find someone
to cover for Kennedy on her days-off, which Perez did not think was feasible. Dkt. 39-6 at 73–
74 (Pl.’s SDMF ¶ 260); see also Dkt. 42-1 at 120 (Def.’s Response ¶ 260). Perez concluded his
email by stating, “Please let me know if you would like to continue the interactive dialogue on
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your 2nd request.” Dkt. 39-6 at 73–74 (Pl.’s SDMF ¶ 260); see also Dkt. 42-1 at 120 (Def.’s
Response ¶ 260).
After receiving this email, Kennedy felt as though “no progress [was] being made.” Dkt.
39-1 at 217 (Pl.’s Ex. 4, Kennedy Dep. at 201:18–203:6). She responded to Perez: “So overall
nothing was accomplished in this week and [a] half to two weeks of my request.” Dkt. 32-7 at 2
(Def.’s Ex. 106). Kennedy followed up with Perez later that day, however, writing: “I want you
to also understand I am flexible and willing to work out a way on my end as well. Such as
maybe having one day a week for sure of telework instead of multiple days randomly and maybe
on the other days I have a flex schedule.” Dkt. 39-6 at 76 (Pl.’s SDMF ¶ 269); see also Dkt. 42-
1 at 123 (Def.’s Response ¶ 269). Kennedy was terminated three days later. As of Kennedy’s
termination on October 1, 2018, she did not have a desk closer to the restroom, nor had the FRA
agreed to permit her to telework on days when her illness prevented her from traveling
(according to Kennedy, the process of traveling exacerbated her nausea) to the office. Dkt. 39-6
at 79 (Pl.’s SDMF ¶ 282); Dkt. 42-1 at 128 (Def.’s Response ¶ 282).
B. Procedural Background
On or about October 25, 2018, Kennedy contacted an EEO counselor to make a
complaint. Dkt. 32-2 at 45 (Def.’s SUMF ¶ 153); see also Dkt. 39-7 at 49 (Pl.’s Response
¶ 153). On February 21, 2019, Kennedy filed a formal administrative complaint, and, on April
15, 2019, the Department’s Office of Civil Rights accepted the complaint and referred the matter
for investigation. Dkt. 32-2 at 45 (Def.’s SUMF ¶ 155); see also Dkt. 39-7 at 49 (Pl.’s Response
¶ 155).
On July 24, 2019, Kennedy filed suit in this Court against Dynamic-Pro, 19-2212 Dkt. 1,
and on September 5, 2019, she filed suit against the Department, 19-2666 Dkt. 1. On December
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13, 2019, the Court consolidated Kennedy v. Dynamic-Pro, Inc., No. 19-cv-2212, and Kennedy v.
Chao, No. 19-cv-2666, pursuant to Federal Rule of Civil Procedure 42(a). The parties later
stipulated to the dismissal of Dynamic-Pro, Inc., leaving the Secretary of Transportation as the
only remaining defendant, Min. Order (04/26/2021), and, as noted above, Kennedy has dropped
three of her claims against the Department. As a result, all that remains are three claims against
the Department: Count I, which alleges that Kennedy was subjected to a hostile work
environment; Count II, which alleges that she was subject to retaliation for complaining about
that hostile work environment and about related retaliatory action; and Count III, which alleges
that the Department failed to accommodate her disability.
The Department now moves for summary judgment on the remaining counts, Dkt. 32,
and Kennedy opposes that motion, Dkt. 39.
II. LEGAL STANDARD
Summary judgment is warranted if a party can “show[ ] that there is no genuine dispute
as to any material fact and [that the party] is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A fact is “material” if it could affect the outcome of the litigation under governing
law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is “genuine” if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see
Scott v. Harris, 550 U.S. 372, 380 (2007). The Court must view the evidence in the light most
favorable to the nonmoving party and must draw all reasonable inferences in that party’s favor.
Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
The party seeking summary judgment “bears the initial responsibility” of “identifying
those portions” of the record that “demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party carries this initial
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burden, the burden then shifts to the nonmoving party to show that sufficient evidence exists for
a reasonable jury to find in the nonmoving party’s favor with respect to the “element[s] essential
to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322.
The nonmoving party’s opposition, accordingly, must consist of more than unsupported
allegations or denials, and must be supported by affidavits, declarations, or other competent
evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R.
Civ. P. 56(c); Celotex, 477 U.S. at 324. That is, once the moving party carries its initial burden
on summary judgment, the nonmoving party must provide evidence that would permit a
reasonable jury to find in its favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir.
1987). If the nonmoving party’s evidence is “merely colorable” or “not significantly probative,”
the Court should grant summary judgment. Liberty Lobby, 477 U.S. at 249–50.
III. ANALYSIS
The Department moves to dismiss each of Kennedy’s three remaining claims on a variety
of grounds. The Court will consider each claim, and the Department’s corresponding arguments,
in turn.
A. Hostile Work Environment Based on Gender
Kennedy first alleges that she suffered severe and pervasive sexual harassment from
Marc Willis and that the Department failed to act when she brought this conduct to the attention
of the Department’s EEO office.
Title VII prohibits employers from “fail[ing] or refus[ing] to hire or to discharge any
individual, or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C.
§ 2000e–2(a)(1). “When the workplace is permeated with discriminatory intimidation, ridicule,
15
and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment, Title VII is violated.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Harris v. Forklift Sys. Inc.,
510 U.S. 17, 21 (1993)). For obvious reasons, a claim of this type is referred to as a “hostile
work environment” claim. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998).
“To make a prima facie Title VII hostile environment claim, the plaintiff employee must
show: (1) the employee was a member of a protected class; (2) the employee was subjected to
unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) the
charged sexual harassment had the effect of unreasonably interfering with the plaintiff’s work
performance and creating an intimidating, hostile, or offensive working environment; and (5) the
existence of respondeat superior liability.” Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119,
1122–23 (D.C. Cir. 2002) (internal quotation marks and citation omitted). Here, viewing the
evidence in the light most favorable to the nonmoving party, Kennedy easily clears the first three
hurdles—she is a member of a protected class based on her gender; she was subjected to
repeated, unwelcome sexual harassment; and that harassment was based on her sex. The
Department, instead, premises its motion on the fourth and fifth requirements, arguing (1) that
even accepting Kennedy’s allegations regarding Willis’s conduct, that conduct was insufficiently
severe or pervasive as to have affected the terms and conditions of her employment, and (2) that,
in any event, the Department cannot be held responsible for what Willis said and did. Dkt. 32-1
at 11–23.
1. Severe or Pervasive Harassment
To prevail on a Title VII hostile work environment claim, the plaintiff must show that the
workplace was “both objectively and subjectively offensive, one that a reasonable person would
16
find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of
Boca Raton, 524 U.S. 775, 787 (1998). “To determine whether an environment is sufficiently
hostile or abusive,” courts must “‘look[] at all the circumstances,’ including the ‘frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Id. at 787–88 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
“‘Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work
environment—an environment that a reasonable person would find hostile or abusive—is beyond
Title VII’s purview.’” Oncale, 523 U.S. at 81 (quoting Harris, 510 U.S. at 21).
As the D.C. Circuit has explained, “[s]everity and pervasiveness are complementary
factors and often go hand-in-hand, but a hostile work environment claim could be satisfied with
one or the other.” Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014). “In discerning
severity and pervasiveness,” the Court must “assess the timeline of events as a whole” and must
determine whether those events give rise to a hostile work environment. Id. “[T]he constituent
acts of a hostile-work-environment claim,” moreover, “must be ‘adequately linked’ to one
another.” Baird v. Gotbaum (Baird II), 792 F.3d 166, 171 (D.C. Cir. 2015) (quoting Baird v.
Gotbaum (Baird I), 662 F.3d 1246, 1251 (D.C. Cir. 2011)).
Often, “a few isolated incidents of offensive conduct [will] not amount to actionable
harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (holding that a plaintiff
could not prove prima facie case of sexual harassment where “claim amount[ed] to only one
isolated incident of sexual harassment”); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 269 (2001) (no actionable harassment in case involving singular statement, “I hear making
love to you is like making love to the Grand Canyon”); Harris v. Wackenhut Servs., Inc., 419 F.
17App’x 1, 1 (D.C. Cir. 2011) (holding that “three racially motivated comments directed at [the
plaintiff] . . . do not amount to actionable harassment”). But, in unusual circumstances, a single,
particularly severe incident might suffice. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577
(D.C. Cir. 2013).
Here, taking Kennedy’s evidence as true and drawing all justifiable inferences in her
favor, see Tolan v. Cotton, 572 U.S. 650, 651 (2014), the Court must consider whether the
following incidents, which allegedly took place between October 2017 to July 2018, meet this
burden:
• When Kennedy was leaving the office, she turned back to speak to a co-
worker and saw Willis “just ogling [her] body, just, like, looking me up and
down in a lusty, creepy way.” When she returned, her co-worker Ashante
Jorden told Kennedy that Willis “asked if [Kennedy] was a stripper because”
of the size of her posterior. Dkt. 39-1 at 181 (Pl.’s Ex. 4, Kennedy Dep. at
57:19–58:4).
• On “at least five or six” occasions, Kennedy witnessed Willis ogling her body
and “shaking his head and smiling.” Dkt. 39-1 at 183–84 (Pl.’s Ex. 4,
Kennedy Dep. at 68:16–69:20).
• When Kennedy was about to move to Government Affairs, Willis “kept
coming up to [Kennedy] and telling [her] the whole week that [she] was
getting ready to work for him and [she] was going to be his assistant. And
he was saying it, like, every day.” Dkt. 39-1 at 185 (Pl.’s Ex. 4, Kennedy
Dep. at 74:11–15).
• Willis told Kennedy that “the only reason why . . . Hess wanted [Kennedy]
to work for him was because of [her] looks.” Dkt. 39-1 at 185 (Pl.’s Ex. 4,
Kennedy Dep. at 74:20–75:8).
• “At one point [Willis] asked [Kennedy] for gum and said he might not know
when [she] will want a kiss from him.” Dkt. 39-1 at 184 (Pl.’s Ex. 4, Kennedy
Dep. at 71:4–8). During that same interaction, Willis told Kennedy that “he
was jealous of . . . the things on her neck and that he wasn’t the one to give
them to [her] or put them there,” apparently referring to hickies. Id. at 186
(Pl.’s Ex. 4, Kennedy Dep. at 77:16–78:13).
18
• Willis told Kennedy “how nice [she] look[s] in [her] jeans on Fridays.” Dkt.
39-1 at 185 (Pl.’s Ex. 4, Kennedy Dep. at 75:9–21).
• “[A]t the printer,” Willis “asked to get in front of [Kennedy] because [she]
had more documents to print th[a]n he had and [Kennedy] told him ‘ok you
can get in front of me but it may cost ya,” which Kennedy said was stated in
a “joking” and “non-sexual manner.” Dkt. 39-1 at 184 (Pl.’s Ex. 4, Kennedy
Dep. at 72:11–16). Willis then responded, “in a[n] uncomfortable way,” that
he was “willing to pay for certain things.” Id. (Pl.’s Ex. 4, Kennedy Dep. at
72:16–19).
• Willis once told Kennedy that she was “pretty” and that “if he was [her] age
he would date [her].” Dkt. 39-1 at 185 (Pl.’s Ex. 4, Kennedy Dep. at 75:11–
76:7).
• While not in Kennedy’s presence, Willis made a comment to her co-worker
Antoinette Jensen about “being a dirty old man to the nurses and grabbing
their butts,” which Jensen relayed to Kennedy. Dkt. 39-1 at 185 (Pl.’s Ex. 4,
Kennedy Dep. at 76:8–24).
• Around the holidays, after Kennedy left early for the day with Hess’s
permission, Willis texted Kennedy to tell her that she was “not supposed to”
leave early because she was a contractor, and then said, “oh, well, we should
go out for a drink.” Dkt. 39-1 at 232 (Pl.’s Ex. 4, Kennedy Dep. at 262:8–
263:7).
• Willis “came out of his office, and he told [her] that he liked [her] red
bottoms,” referring to her Christian Louboutin shoes. Dkt. 39-1 at 275 (Pl.’s
Ex. 4, Kennedy Dep. at 275:14–23).
• Kennedy told Jensen that Willis “t[ells her she is] beautiful all the time.” Dkt.
39-1 at 1573.
• “When [Kennedy] moved over to Government Affairs, [Willis] told
[Kennedy] that Chris [Hess] doesn’t need an assistant and that somebody will
be let go, but he[]” would “make sure it’s not” Kennedy, that she “will be
working for [Willis],” and that “he had [her] back.” Dkt. 39-1 at 234–35
(Pl.’s Ex. 4, Kennedy Dep. at 272:14–273:11).
Existing precedent does not draw clear lines between conduct that is “merely” offensive
and conduct that is so offensive or pervasive that it “affect[s] the conditions of” the plaintiff’s
employment. Harris, 510 U.S. at 21. This Court has held, at times, that persistently asking the
19
plaintiff out, making “a litany of comments about [the plaintiff’s] appearance and body,”
delaying the individual’s entrance and exit, staring, and “undressing [the plaintiff] with his eyes,”
Simms v. Ctr. For Corr. Health & Pol’y Stud., 794 F. Supp. 2d 173, 193 (D.D.C. 2011); making
a sexual advance, the rejection of which may have cost the plaintiff a position at work, along
with multiple instances of verbal and physical conduct in the preceding months, Norris v.
Washington Metro. Area Transit Auth., 342 F. Supp. 3d 97, 124–25 (D.D.C. 2018); and leaving
“sexually offensive material . . . under plaintiff’s toolbox and . . . regularly display[ing] sexually
explicit materials . . . in [the plaintiff’s] line of sight,” Whorton v. Washington Metro. Area
Transit Auth., 924 F. Supp. 2d 334, 354 (D.D.C. 2013), can suffice to submit the question of
harassment to a jury. But the Court has also held that “unspecified compliments regarding [the
plaintiff’s] appearance, several inappropriate suggestive comments, and one sexually explicit
remark,” from one co-worker, and one isolated allegation of unwanted touching outside of the
office by a different co-worker, Bergbauer v. Mabus, 934 F. Supp. 2d 55, 64–65, 76–78 (D.D.C.
2013); hugging the plaintiff, grabbing her buttocks, and attempting to kiss her, Akonji v. Unity
Healthcare, Inc., 517 F. Supp. 2d 83, 88, 97–98 (D.D.C. 2007); or caressing the plaintiff on the
knee, placing her breast on his arm, and placing her fingers on his buttocks, Carter v. Greenspan,
304 F. Supp. 2d 13, 25 (D.D.C. 2004), did not suffice.
In deciding whether a course of conduct is sufficiently severe or pervasive to support a
hostile work environment claim, the Court must consider the totality of the circumstances,
Harris, 510 U.S. at 23, including “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Id. “[O]ffhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
20
‘terms and conditions of employment.’” Faragher, 524 U.S. at 788; see also Harris, 510 U.S. at
21 (the “‘mere utterance of an . . . epithet which engenders offensive feelings in a[n] employee’
does not sufficiently affect the conditions of employment”) (quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 67 (1986)). But the jury will often be best situated to determine, after
hearing all of the evidence, whether the misconduct “crossed the line between mere vulgarity . . .
and offensive conduct that was sufficiently severe or pervasive to alter [the] conditions of
employment.” Estes v. Georgetown Univ., 231 F. Supp. 2d 279, 282 (D.D.C. 2002), vacated
pursuant to settlement (Oct. 23, 2003).
This case lies very close to the line. On the one hand, the conduct occurred repeatedly
over a period of months, and, although no single episode was sufficiently severe to support a
claim standing alone, see Harris, 510 U.S. at 21, one might reasonably argue that this course of
demeaning conduct by a relatively senior government official directed at an administrative
assistant would have left her (and possibly others) with a diminished sense of her worth in the
workplace. In other words, she was not treated as a co-worker but, rather, as someone valued
only “because of [her] looks,” Dkt. 39-1 at 185 (Pl.’s Ex. 4, Kennedy Dep. at 74:20–75:8), who
easily could be fired because she was merely a contractor, and who was made to feel exceedingly
uncomfortable and vulnerable. But on the other hand, one can also argue that Kennedy did not
work directly with Willis and was not subject to his supervision, no one with whom Kennedy
worked engaged in any form of sexual harassment, and Willis’s misconduct was (at least
arguably) less sustained and severe than conduct that other decisions from this Court have treated
as insufficient, in light of the high bar set by the governing Supreme Court and D.C. Circuit
precedent. This line-drawing exercise is further complicated by the fact that notions of whether
particular workplace conduct is “objectively and subjectively offensive” and of a type “that a
21
reasonable person would find hostile or abusive,” Faragher, 524 U.S. at 787, and conceptions of
the “severity” of such misconduct, are not inherently static but, presumably, can evolve over
time, rendering older precedent less helpful.
These are difficult questions. But, for present purposes, the Court need not decide
whether Willis’s alleged conduct crossed the line from vulgar to “sufficiently severe or pervasive
to alter [the] conditions of employment,” Estes, 231 F. Supp. 2d at 282, because the
Department’s second argument is both more convincing and dispositive.
2. Employer Liability Standards
The more straightforward path to victory for the Department lies in the employer liability
standards that apply under Title VII. For purposes of a hostile work environment claim, the
question “[w]hether an employer may be held liable depends on whether a coworker or
supervisor of the plaintiff perpetrated the harassment.” Leach v. Nat’l R.R. Passenger Corp., 128
F. Supp. 3d 146, 154 (D.D.C. 2015). Where a coworker engages in harassment, the employer is
liable only “if the employer was negligent with respect to the offensive behavior.’” Vance v.
Ball State Univ., 570 U.S. 421, 427 (2013). Under controlling D.C. Circuit precedent, this means
that “[a]n employer may be held liable for the harassment of one employee by a fellow employee
(a non-supervisor) if the employer knew or should have known of the harassment and failed to
implement prompt and appropriate corrective action.” Curry v. District of Columbia, 195 F.3d
654, 660 (D.C. Cir. 1999). But “where the harassing employee is the plaintiff’s ‘supervisor,’”
“an employer may be vicariously liable for its employees’ creation of a hostile work
environment.” Vance, 570 U.S. at 428. “[A]n employee is a ‘supervisor’ for purposes of
vicarious liability under Title VII if he or she is empowered by the employer to take tangible
employment actions against the victim.” Id. at 424 (emphasis in original). Those actions
22
include, without limitation, “a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Ellerth, 524 U.S. at 761; see also Vance, 570 U.S. at
431. For the reasons explained below, the Court concludes that no reasonable jury could find
that Willis was Kennedy’s “supervisor” or that the Department failed to take appropriate
corrective action as soon as it learned of the harassment.
Although Kennedy maintains that Willis had actual supervisory authority over her, she
has failed to proffer any competent evidence supporting that contention. She starts with the
claim that “Willis told [her] on several occasions that he would have her transferred to become
his assistant prior to her re-assignment to [the Office of the Administrator] and RFCO.” Dkt. 39
at 31. The evidence that she cites for this, id., however, does not show—and would not permit a
reasonable jury to find—that Willis had any authority over Kennedy. Kennedy testified, for
example, that before she was assigned to work for Hess, Willis (incorrectly) told her that she
“was going to be his assistant.” Dkt. 39-1 at 185 (Kennedy Dep. at 74:9–22). But that assertion
says nothing about who had the authority to determine Kennedy’s assignment, and, indeed, the
fact that Kennedy was assigned to Hess, and not Willis, shows that Willis lacked that authority.
Similarly, although Kennedy also testified that, in summer of 2018, she understood that Willis
“put in a request” that she come to work for him, she acknowledged that she did not know to
whom Willis made this request, and, in any event, there is no evidence that Kennedy ever, in
fact, served as Willis’s assistant. Id. at 234 (Kennedy Dep. at 272:8–273:11). Nor is there a
trace of evidence that Willis ever gave her instructions, ever altered her responsibilities or
benefits, or ever evaluated her work.
23
Kennedy also maintains that Willis “prevented [her] reassignment back to [the Office of
the Administrator], as evidenced by his email exchange with Ms. O’Neal, wherein she gave him
a ‘heads up’ that [DOT Contracting Officer Lee] Anderson was contemplating this move.” Dkt.
39 at 31. She argues that “the transfer did not happen because Willis and O’Neal did not want it
to happen.” Id. at 32. Kennedy offers no evidence that either Willis or O’Neal had any such
authority. Rather, she merely invokes a single email exchange in which O’Neal notified Willis
about the possibility that Kennedy would be transferred back to the Office of the Administrator,
and in which Willis responded, “I hope Becky [Pennington] talked him out of this” and thanked
O’Neal “for the heads up.” Dkt. 39-6 at 48 (SDMF ¶ 164) (alteration in original). Again, if
anything, that email exchange shows that Willis lacked authority to take—or even to
recommend—any employment action with respect to Kennedy; he was merely provided a “heads
up.”
In the alternative, Kennedy argues that, if “the Court find[s] that Willis did not have
actual authority, the evidence demonstrates that he exercised apparent authority over Ms.
Kennedy and the other contract employees.” Dkt. 39 at 32 (emphasis added). For support, she
points to Ellerth, where the Supreme Court observed that “[s]cope of employment does not
define the only basis for employer liability under agency principles” and that, “[i]n limited
circumstances, agency principles impose liability on employers even where employees commit
torts outside the scope of employment.” 524 U.S. at 758. Those circumstances include instances
in which “‘the servant purported to act or to speak on behalf of the principal and there was
reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of
the agency relation.’” Id. (quoting Restatement (Second) of Agency § 219); see also id. at 759
(“As a general rule, apparent authority is relevant where the agent purports to exercise a power
24
which he or she does not have, as distinct from where the agent threatens to misuse actual
power.”). The Supreme Court cautioned, however, that “[i]f, in the unusual case, it is alleged
there is a false impression that the actor was a supervisor, when he in fact was not, the victim’s
mistaken conclusion must be a reasonable one.” Id. at 759 (emphasis added).
Here, no jury could find that Kennedy had a reasonable, mistaken belief that Willis was
her supervisor. When asked during her deposition, “Was Mr. Willis ever your direct supervisor,”
Kennedy answered, “Never.” Dkt. 39-1 at 171 (Pl.’s Ex. 4, Kennedy Dep. at 19:21–22). And
when asked, “Did Mr. Willis ever have any supervisory authority over you,” Kennedy
responded, “Not from my understanding.” Dkt. 39-1 at 171 (Pl.’s Ex. 4, Kennedy Dep. at 19:23–
25). Kennedy, nonetheless, argues that Willis possessed apparent authority to act as her
supervisor because, in her view, “Willis overrode Hess’s instructions allowing [her] to leave
early around the Thanksgiving holiday.” Dkt. 39 at 32. But, even accepting Kennedy’s
deposition testimony as true, that vastly overstates what she said.
Her relevant testimony is as follows:
Q. And was there any instances that you can recall in which Mr. Willis tried to
exercise his authority to let you know that he had authority over you?
A. Yes. And in the Administrator’s Office he would always say how contractors
are at will and that we don’t have the same rights as federal workers, and he
would constantly talk about that and how -- in addition to me knowing that he
had gotten a young lady fired, so --
Q. Okay. Was there ever an instance where Mr. Willis indicated that your COR
was looking for you?
A. Yes. When I moved over to Government Affairs, it was during -- it was
around the holidays and I was under Chris Hess. Chris had come out of his
office and was putting his backpack on, and he was like, what are you still doing
here? It’s the holidays; go home. And I was like, really? And he was like, yes,
go home. And so I packed my stuff up, I went and said bye to everybody, and I
left. And a little bit after I got in the house, Ashante Jorden reaches out to me
and told me that Marc was looking for me. And she said that he had asked for
25
my number, but she didn’t want to give it to him, so she took his number. She
said that -- here goes his number; I don’t know; he was looking for you; it
seemed urgent. So I texted Marc and said, hey, I heard you were looking for me;
is there something I can help you with? And he wrote back and said, yeah,
MaryAnne was looking for you. And I thought that was kind of odd because
MaryAnne never comes in the Government Affairs Office, but if he said it, I just
believed him. And he said -- I said, oh, well, Chris had said I can leave early.
He was like, no, you’re not supposed to do that; you’re a contractor. And I was
like, oh, well, I didn’t know; Chris said I could go, and he’s my supervisor. And
he said, oh, well, we should go out for a drink. And then I had told him I’m an
extremely busy person. And he just said okay.
Dkt. 39-1 at 232 (Kennedy Dep. at 261:23–263:7).
Although this exchange is arguably another arrow in Kennedy’s quiver of complaints
about Willis’s harassment, no reasonable person would come away from it with the belief that
Willis was her de facto supervisor or that he had any authority relating to her employment.
Indeed, when Kennedy answered Willis’s scolding by telling him that Hess was her supervisor,
and he said that she could go, Willis did not push back and, instead, invited Willis out for a
drink. In any event, even if obnoxious, there is no reason why one co-worker cannot tell another
co-worker that she has broken a rule. What matters is whether the officious co-worker had the
authority—or even the apparent authority—to set the rules or to do anything in response to a
breach of those rules. Asking a co-worker out for a drink falls well beyond the types of
employment actions one might reasonably expect a supervisor to take. See Vance, 570 U.S. at
432 (rejecting the notion that a supervisor includes those who “have the ability to direct a co-
worker’s labor to some ill-defined degree”).
Nor is the Court persuaded by Kennedy’s argument that “[i]t was well known that Willis
had recently effectuated the removal of another [Dynamic-Pro] contract employee who
complained about him,” leaving her with the reasonable belief that he was her supervisor. Dkt.
39 at 32. Simply put, an unsubstantiated rumor that Willis had someone else fired says nothing
26
about his authority—or apparent authority—over Kennedy. And, for similar reasons, Kennedy’s
contention that Willis “repeatedly reinforced to [her] and the other contractors that they had less
rights than regular federal employees and were easier to terminate,” Dkt. 39 at 32, does little to
advance her cause. Even if Willis told the contractors that they had fewer rights or that they
were at-will employees—and even if he was a bully—that does not mean that Willis could fire
Kennedy at will.
The Court, accordingly, concludes that no reasonable jury could find that Willis was
Kennedy’s actual or apparent supervisor. This, then, leaves only the question of whether there is
any evidence that would permit a reasonable jury to find that the Department “was negligent
with respect to the offensive behavior.” Vance, 570 U.S. at 427. “An employer is negligent with
respect to sexual harassment if it knew or should have known about the conduct and failed to
stop it.” Ellerth, 524 U.S. at 759. Neither Kennedy’s complaint nor her opposition to the
Department’s motion contains any argument or evidence that the Department was negligent.2
That omission is unsurprising given the undisputed facts: the parties agree that after Kennedy
reported Willis’s behavior to the Department, the Department promptly spoke to Willis, and the
harassment stopped. See Dkt. 32-2 at 17 (Def.’s SUMF ¶ 53); see also Dkt. 39-7 at 18 (Pl.’s
Response ¶ 53). Nor does Kennedy even argue that the Department should have known about
the conduct at some earlier point in time and failed to stop it then; to the contrary, she testified
that most of Willis’s harassment occurred when no one else was present, Dkt. 39-1 at 234 (Pl.’s
Ex. 4, Kennedy Dep. at 269:6–9).
2
Although Kennedy argues at length, in the context of the Faragher/Ellerth affirmative defense
to vicarious liability, that the Department’s investigation into Willis was flawed, she never puts
forward a negligence theory of liability; instead, she relies exclusively on a vicarious liability
theory.
27
For these reasons, the Court will grant summary judgment in favor of the Department on
Count I of Kennedy’s complaint.
B. Retaliatory Hostile Work Environment and Termination
Count II of Kennedy’s complaint alleges that the Department subjected her to two types
of retaliation for complaining to the Department’s EEO office about Willis and O’Neal: First,
she was allegedly subjected to “a hostile work environment based on [her] protected activity.”
19-2666 Dkt. 1 at 18 (Compl. ¶ 70). Second, she was allegedly terminated in retaliation for that
EEO activity.3 Id. (Compl. ¶ 71). As explained below, the Department is entitled to summary
judgment with respect to the first of these theories of relief but not as to the second.
It is unlawful under Title VII for an employer “to discriminate against any of [its]
employees . . . because [she] has made a charge . . . or participated in any manner in an
investigation” of discrimination. 42 U.S.C. § 2000e–3(a); see Rochon v. Gonzales, 438 F.3d
1211, 1219 (D.C. Cir. 2006) (“general ban on retaliation in § 2000e–3(a)” applies to federal
employers through § 2000e–16). Thus, to prevail on a Title VII retaliation claim, a plaintiff must
prove that she suffered an adverse employment action “because” she engaged in protected EEO
3
The complaint alleges that “Plaintiff engaged in various forms of protected activity including
her complaints to the EEO regarding Willis’s conduct and O’Neal’s retaliation, request for a
reasonable accommodation from Defendant and when she complained to Defendant’s EEO in
August of 2018 that Defendant was failing to act on her request for a reasonable
accommodation.” 19-2666 Dkt. 1 at 18 (Compl. ¶ 69). In her opposition to summary judgment,
however, Kennedy withdrew her claim that she was subject to retaliation for requesting a
reasonable accommodation; she now focuses exclusively on her claim that she was subjected to
retaliation for complaining about Willis and O’Neal. Dkt. 29 at 8. The Court will, therefore,
GRANT the Department’s motion as conceded with respect to Kennedy’s claim that she was
subjected to retaliation for making a reasonable accommodation request.
28
activity and that her employer acted with “the intent or motive to retaliate.” Mitchell v. Baldrige,
759 F.2d 80, 66 (D.C. Cir. 1985).
Absent direct evidence of retaliatory intent, courts evaluate Title VII cases—including
retaliation cases—under the burden-shifting analysis adopted in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009). The
plaintiff must first establish the prima facie case of retaliation. Id. at 1320 n.*. As the D.C.
Circuit has explained:
In order to establish a prima facie case of retaliation, a plaintiff must show: 1)
that she engaged in a statutorily protected activity; 2) that the employer took an
adverse personnel action; and 3) that a causal connection existed between the
two. As in a case of disparate treatment, this initial burden is not great. Plaintiff
merely needs to establish facts adequate to permit an inference of retaliatory
motive.
Mitchell, 759 F.2d at 66. If the plaintiff carries this initial burden, the burden then shifts to the
employer to offer a legitimate, nonretaliatory reason for its action. Id. But if the employer
carries that burden, “the court ‘need not—and should not—decide whether the plaintiff actually
made out a prima facie case under McDonnell Douglas,’” and, instead, “should proceed to the
question of retaliation vel non.” Taylor, 571 F.3d at 1320 n.* (quoting Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (disparate treatment claim); Jones v.
Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (retaliation claim)). “At that stage, the only
question is whether the employee’s evidence creates a material dispute on the ultimate issue of
retaliation either directly by [showing] that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Jones, 557 F.3d at 679 (cleaned up).
Here, the Department concedes that Kennedy engaged in two instances of protected EEO
activity: (1) her July 20, 2018 complaint to Whiting regarding Willis’s sexual harassment; and
29
(2) her August 30, 2018 complaint to Whiting regarding Willis’s and O’Neal’s retaliation against
her. See Dkt. 32-1 at 25. The Department also concedes that Kennedy’s termination qualifies as
an adverse employment action. It disputes, however, whether Kennedy has offered evidence
sufficient to permit a reasonable jury to find (1) that she was subjected to a retaliatory hostile
work environment or (2) that she was terminated because she engaged in that protected activity.
The first defense applies only to Kennedy’s retaliatory work environment claim, while the
second applies most aptly to her retaliatory termination claim.
Because the analysis relevant to these defenses differs, the Court will consider each in
turn.
1. Retaliatory Hostile Work Environment
Courts “have recognized a special type of retaliation claim based on a ‘hostile work
environment.’” Baird II, 792 F.3d at 168. “A hostile [work] environment [claim] consists of
several individual acts that ‘may not be actionable on [their] own’ but become actionable due to
their ‘cumulative effect.’” Id. (third alteration in original) (quoting Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 115 (2002)). “The constituent acts must be ‘adequately linked’ such
that they form ‘a coherent hostile environment claim.’” Id. (quoting Baird I, 662 F.3d at 1251 ).
“In addition, [these] acts must be ‘of such severity and pervasiveness as to alter the conditions
of . . . employment and create an abusive working environment.’” Id. at 169 (quoting Hussain v.
Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006)). As in the context of a hostile work environment
based on gender, “[s]everity and pervasiveness are determined by reference to ‘all the
circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Id. (quoting Harris, 510 U.S. at 23).
30
Here, the Department argues that Kennedy’s retaliatory hostile work environment claim
fails because the allegedly hostile acts that she has identified are insufficiently severe or
pervasive. Dkt. 32-1 at 28-29. To evaluate that contention, the Court begins by outlining the
incidents that Kennedy invokes in support of her claim:
• Willis and O’Neal would walk past her and laugh. Dkt. 39-1 at 199 (Kennedy
Dep. at 131:3–13).
• On August 9, O’Neal met with Noah to discuss Kennedy’s alleged
performance deficiencies, including Kennedy’s tardiness and her failure to
send email acknowledgments to work requests. Dkt. 39-6 at 35 (Pl.’s SDMF
¶¶ 116–20).
• On August 20, O’Neal met with Noah and claimed that Kennedy continued
to exhibit performance difficulties, including that Kennedy would fail to
update leadership on the status of her tasks. Dkt. 39-6 at 35 (Pl.’s SDMF
¶ 136).
• On August 30, 2018, Kennedy met with Perez to discuss the PIP. Dkt. 39-6
at 56 (Pl.’s SDMF ¶ 193).
• O’Neal complained that Kennedy spent too much time in the bathroom,
despite O’Neal’s awareness that Kennedy was suffering from hyperemesis
gravidarum. See Dkt. 39-6 at 57 (Pl.’s SDMF ¶ 200).
• O’Neal unreasonably delayed action on Kennedy’s request for a desk closer
to the bathroom. See, e.g., Dkt. 39-6 at 54, 67, 79 (Pl.’s SDMF ¶¶ 186, 235,
282).
• O’Neal denied Kennedy’s request to telework and terminated the interactive
process. See, e.g., Dkt. 39-6 at 69–74 (Pl.’s SDMF ¶¶ 242–61).
• O’Neal instructed Kennedy to order more calendars than had been requested,
causing the purchase to be over what the funds administrator had approved.
Dkt. 39-6 at 60–61 (Pl.’s SDMF ¶ 213).
• O’Neal prevented Kennedy from accessing training on FRA’s acquisition
system, PRISM. Dkt. 39-6 at 61, 63 (Pl.’s SDMF ¶¶ 215, 222).
Even if Kennedy could establish each of the incidents at trial, no reasonable jury could
find that they established a hostile work environment. To prevail on a claim of a retaliatory
31
hostile work environment, Kennedy “must show that the [Department] subjected h[er] to
‘discriminatory intimidation, ridicule, and insult’ of such ‘severity or pervasiveness as to alter
the conditions of [her] employment and create an abusive working environment.’” Hussain v.
Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006) (quoting Harris, 510 U.S. at 17, 21–22). But
simply experiencing adverse and allegedly retaliatory “‘work-related actions by supervisors’
acting within the scope of their official duties”—however objectionable that might be, and
however actionable under discrete disparate treatment theories—does not mean that the
employee was subjected to a hostile work environment. Fields v. Vilsack, 207 F. Supp. 3d 80, 95
(quoting Grosdidier v. Chairman, Broad. Bd. Of Governors, 774 F. Supp. 2d 76, 110–11 (D.D.C.
2011)); Aldrich v. Burwell, 197 F. Supp. 3d 124, 138 (D.D.C. 2016) (“[C]ourts typically do not
find . . . work-related actions by supervisors to be sufficient for a hostile work environment
claim.” (internal quotation marks omitted)). Rather, the “nature of a hostile work environment
claim” is distinct, Grosdidier v. Chairman, Board of Governors, 774 F. Supp. 2d 76, 110
(D.D.C. 2011), and it requires “an abusive working environment” distinct from the usual
prevails—whether justified or not—of workplace evaluation, feedback, and opportunity, Baloch,
550 F.3d at 1201. To hold otherwise would blur the distinction between “discrete disparate
treatment claims and hostile work environment claims” and risks transforming ‘‘virtually every
discrimination or retaliation case involving more than one challenged action into a hostile work
environment claim.’” Bain v. Office of the Attorney General, --- F. Supp.3d ---, 2022 WL
19904236, at * 25 (D.D.C. Dec. 21, 2022) (quoting Fields, 207 F. Supp. 3d at 95).
Here, the vast majority of the allegedly harassing acts that Kennedy identifies fall into
this camp. She contends that her supervisors unfairly concluded that her performance was
deficient, unfairly criticized her work and attendance, and unfairly placed her on a PIP. But even
32
drawing all inferences in Kennedy’s favor, as the Court must do at this stage of the proceeding,
no reasonable jury could find that these incidents rise to the level of “intimidation” “ridicule” or
“insult” of such severity or pervasiveness to have rendered her workplace “abusive.” Meritor
Sav. Bank, FSB, 477 U.S. at 65; Harris, 510 U.S. at 21. Nor are Kennedy’s allegations that
Willis and O’Neal seemed to be laughing at her and that O’Neal was insensitive to her difficult
pregnancy sufficient to clear the high hurdle of establishing an “objectively” hostile work
environment. See Baird II, 792 F.3d at 172. Indeed, the allegedly retaliatory harassment that
Kennedy identifies is, if anything, less severe or pervasive than conduct the Court has previously
held “fail[s]” to amount to a retaliatory hostile work environment. Hussain, 435 F.3d at 366–67
(poor performance evaluations, termination threats, and heightened monitoring by supervisors
did not amount to a retaliatory hostile work environment); Husain v. Barsa, No. CV 15-708
(RDM), 2021 WL 663206, at *13 (D.D.C. Feb. 19, 2021) (“[R]equiring that an employee
provide reports regarding her day’s activities while teleworking, requiring the employee to
obtain authorization before appearing at an event (during the workday) to discuss government
hiring, failing to provide the employee with unspecified training opportunities, and delaying the
completion of evaluations or work plans does not come close to satisfying the ‘demanding’
standard for a hostile work environment claim.”); Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94
(D.D.C. 2009) (“[R]emoval of important assignments, lowered performance evaluations, and
close scrutiny of assignments by management” does not “sufficiently demonstrate a significant
level of offensiveness.”).
In Kennedy’s view, the list of hostile acts set forth above fails to capture the severity and
pervasiveness of the harassment she suffered because it omits Willis’s conduct; as she sees
things, the Court must consider O’Neal’s retaliatory actions and Willis’s sexual harassment as
33
one continuous, uninterrupted hostile work environment. See Dkt. 39 at 40 n.6; see also id. at
26–30. The caselaw on which Kennedy relies, however, is principally about a different issue—
whether certain acts are time-barred depending on whether they are part of a single, ongoing
hostile work environment. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122
(2002); Vickers v. Powell, 493 F.3d 186, 198–99 (D.C. Cir. 2007). This case, in contrast, poses
the question whether hostile or offensive acts that preceded the date on which a plaintiff engaged
in any protected EEO activity—and that were not engaged in for any retaliatory purpose or in
anticipation of the protected activity—can contribute to any allegedly retaliatory, hostile work
environment. The answer to that question can be found in the statutory text. Title VII prohibits
an employer from discriminating against an employee—including by creating or tolerating a
hostile work environment—“because” the employee has engaged in protected EEO activity. 42
U.S.C. § 2000e–3(a).
Here, Kennedy does not allege—nor could she allege—that any of Willis’s alleged
misconduct was the product of any retaliatory animus (the alleged misconduct occurred before
the alleged protected activity) and, thus, she cannot plausibly maintain that those acts of
harassment were taken “because” of Kennedy’s subsequent EEO complaints. See Ricci v. Kerry,
No. CV 11-2185 (RLW), 2013 WL 5329049, at *5 (D.D.C. Sept. 23, 2013) (“[T]he Court must
exclude from consideration those challenged acts that ‘lack a linkage’ to [the plaintiff’s]
protected activity.”) (internal citation omitted); see also Morgan, 536 U.S. at 118 (“[I]f an act on
day 401 had no relation to the acts between days 1-100, or for some other reason, such as certain
intervening action by the employer, was no longer part of the same hostile environment claim,
then the employee cannot recover for the previous acts.”); Alvarado v. Donahoe, 687 F.3d 453,
459 (1st Cir. 2012) (“Speaking commonsensically, our cases have in the past explained that, to
34
successfully establish a claim of unlawful retaliation there must be, at a minimum, competent
evidence that the alleged retaliators knew of the plaintiff’s protected activity and that a retaliatory
motive played a part in the adverse employment actions alleged.”) (cleaned up) (emphasis in
original) (internal citation and quotation marks omitted). Absent any evidence that Willis’s
actions were taken for retaliatory purposes—or explanation for how they set the stage for
O’Neal’s alleged harassment in a manner that made what she did sufficiently severe to alter the
conditions of Kennedy’s employment—Willis’s conduct has no bearing on whether Kennedy
was subjected to retaliation “because” of her protected EEO activity.
The Court will, accordingly, grant summary judgment in favor of the Department with
respect to Kennedy’s claim that she was subjected to a hostile work environment because she
engaged in protected EEO activity.
2. Retaliatory Removal/Termination
Kennedy also alleges that her removal and termination were the result of retaliation. The
Department responds that Kennedy cannot make out a prima facie retaliation claim, Dkt. 32-1 at
26-29, and that, in any event, it had legitimate, non-pretextual business reasons for requesting
that Dynamic-Pro remove her from the contract, id. at 29–39.
As explained above, “where an employee has suffered an adverse employment action and
an employer has asserted a legitimate, non-discriminatory reason for the decision, the district
court need not—and should not—decide whether the plaintiff actually made out a prima facie
case under McDonnell Douglas.” Brady, 520 F.3d at 494 (emphasis in original). Instead, the
Court must move on to consider the ultimate question in the case; that is, has the plaintiff
presented evidence sufficient to permit a reasonable jury to find that the proffered rationale is
pretextual and that the employer, in fact, intentionally discriminated against the employee
35
because of her race, religion, sex, national origin, or protected EEO activity. Id. To be sure,
under Figueroa v. Pompeo, 923 F.3d 1078 (D.C. Cir. 2019), “the Brady shortcut applies only if”
the employer offers competent evidence in support of its legitimate, nondiscriminatory rationale
defense; that evidence is sufficient to permit a reasonable jury to find that the employer was
motivated by the nondiscriminatory rationale; the proffered rationale is “facially ‘credible’ in
light of the proffered evidence;” and the evidence “present[s] a ‘clear and reasonably specific
explanation.” Id. at 1088; see also Kirkland v. McAleenan, No. CV 13-194 (RDM), 2019 WL
7067046, at *14 (D.D.C. Dec. 23, 2019). But, here, Kennedy concedes that the Department has
met its burden under Figueroa, and thus goes straight to the question of pretext. See Dkt. 39 at
46.
According to the Department, the FRA requested that Dynamic-Pro remove Kennedy
from the contract because her performance was subpar, and it points to ample evidence to shift
the burden back to Kennedy to show that this stated reason was pretextual and that, in fact, she
was removed and terminated in retaliation for complaining about Willis and, then later, about
Willis and O’Neal. The Department, for example, offers Noah’s notes from the August 9
meeting, reflecting that Noah “spoke with [Kennedy] about her tardiness” and “about sending
email acknowledgements for requests from leadership.” Dkt. 32-7 at 250 (Def.’s Ex. 119).
Noah also testified at deposition that Kennedy “would take a long time to get tasks done” and
that, when “she did get them done, she would not communicate well from what I’ve heard with
the FRA staff, [and] she wouldn’t communicate well with me as an HR manager.” Dkt. 32-4 at
772–73 (Noah Dep. at 61:21–62:7).4 When asked whether Kennedy “was performing the work
4
The Court notes that some of the evidence in support of the Department’s legitimate,
nonretaliatory reason may be inadmissible hearsay. For example, Noah’s testimony that she
36
that was required of her as an Admin II at FRA,” Noah responded, “No.” Dkt. 32-4 at 774
(Noah Dep. at 63:2–6).
Pennington, the FRA’s CFO, attested that O’Neal and others “raised concerns and
complaints [about] Kennedy’s work performance,” including her “lack of initiative, lack of
attention to detail, and inability to follow-up on assignments.” Dkt. 32-4 at 2128 (Pennington
Decl. ¶ 7). She further attests that Kennedy “could not complete simple tasks, such as updating
the [Office] calendar and making photocopies,” “did not properly maintain the [Office] master
calendar[,]” “failed to acknowledge emails and assignments she received, which caused
confusion as to whether she had completed the assignment[,]” and that her “attitude at work was
off-putting and her body language discouraged people from approaching her and giving her
assignments or asking her work questions.” Dkt. 32-4 at 2128–30 (Pennington Decl. ¶¶ 8–11).
O’Neal makes similar claims in her declaration and also asserts that “Kennedy was
infrequently at her desk when [Staff Directors] went to give her assignments.” Dkt. 32-4 at
1694–96 (Declaration of Yulita O’Neal ¶¶ 8–9, 12). In a mid-August email to Anderson, O’Neal
laid out her asserted reasons for requesting Kennedy’s removal, including that she “ha[d] been
out of the office a lot, as well as continually late to work on a daily basis,” and “ha[d] been given
a few tasks for her position however, she seems quite overwhelmed with the workload and ha[d]
expressed this to [O’Neal] on numerous occasions.” Dkt. 32-7 at 260–61 (Def.’s Ex. 122). She
heard from FRA staff that Kennedy was a poor communicator is apparently hearsay. But that
does not necessarily mean that the evidence carries no weight; even if the evidence might not be
offered for the truth of the matter asserted—that is, that Kennedy was a poor communicator—it
might nonetheless show that the FRA acted for nondiscriminatory reasons, removing Plaintiff
from the contract because the senior staff believed (based on the hearsay) that Kennedy was a
poor communicator.
37
further posited that Kennedy had difficulty “[p]rioritizing her workload” and was unable “to pay
attention to details.” Dkt. 32-5 at 463 (Def.’s Ex. 56).
Under the contract between the Department and Dynamic-Pro, someone in Kennedy’s
role, among other things, was supposed to “[a]rrange for meetings/conferences, including such
matters as location, making reservation[s] for room, schedule, agenda, and notifying all
participants as requested by staff[,]” “[s]chedule, coordinate, and compile logistics and materials
for briefings/meetings[,]” “[m]aintain files,” “[r]eceive visitors and telephone callers[,]” perform
“[d]ata entry” and “fil[e] paperwork[,]” and perform other similar administrative tasks. Dkt. 32-
4 at 2165 (Def.’s Ex. 27). Based on the evidence in the record, a reasonable jury could find that
tardiness, inattention to detail, failure to keep up with the office calendar, failure to respond to
task requests by superiors, an inability to prioritize work, a poor attitude, and an inability to
perform simple tasks like photocopying are all legitimate reasons to request the removal of
someone in that kind of administrative role.
The Department has, accordingly, carried it burden of proffering a legitimate,
nondiscriminatory reason for requesting that Dynamic-Pro remove Kennedy from the contract,
and that rationale is supported by competent evidence that is “facially credible” and “reasonably
specific.” Figueroa, 557 F.3d at 1088 (internal quotation marks omitted). As a result, the
burden shifts to Kennedy to offer evidence that would permit a reasonable jury to find that this
rationale is pretextual and that the real reason that O’Neal (and perhaps others) pushed for her
removal was retaliatory. As explained below, this poses a close question, but the Court is
ultimately persuaded that Kennedy has offered sufficient evidence to go a jury.
At the prima facie stage, a plaintiff can meet her “burden to show a causal connection by
showing that ‘the employer had knowledge of the employee’s protected activity and the adverse
38
personnel action took place shortly after that activity.” Bergbauer v. Mabus, 934 F. Supp. 2d 55,
83 (D.D.C. 2013) (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985)) (cleaned up).
At that prima facie stage, a plaintiff need not “provide direct evidence that his supervisors knew
of his protected activity;” it is enough that the employer knew and that the adverse action took
place shortly after the protected activity. Jones, 557 F.3d at 679. But “[o]nce the employer
proffers a non-retaliatory explanation for the adverse employment action,” “[m]ere temporal
proximity is not sufficient to support” a finding of retaliation. Iyoha v. Architect of the Capitol,
927 F.3d 561, 574 (D.C. Cir. 2019). Otherwise, engaging in “protected activities would
effectively grant employees a period of immunity, during which no act, however egregious,
would support summary judgment for the employer in a subsequent retaliation claim.” Id.(internal citation and quotation marks omitted). At this stage of the process, the employee must,
accordingly, offer “evidence beyond mere proximity . . . to defeat the presumption that the
proffered explanations for the adverse employment action are genuine.” Id. (cleaned up)
(internal citation and quotation marks omitted).
In Iyoha v. Architect of the Capitol, the D.C. Circuit held that the plaintiff had failed to
proffer sufficient evidence of retaliation to survive the defendant’s motion for summary
judgment. Id. In that case, the plaintiff cited an “email by a supervisor,” noting “that Iyoha had
filed a workplace harassment complaint.” Id. But, as the D.C. Circuit observed, “[t]he
supervisor played no role in the 2014 or 2015 hiring processes” challenged in the lawsuit, “and
the email d[id] not relate to either.” Id. And, of course, “merely noting that an employee has
engaged in protected activity does not, without more, raise an inference of retaliation.” Id.Similarly, in Dodson v. United States Capitol Police, No. CV 18-2680 (RDM), 2022 WL
4598575, at *18 (D.D.C. Sept. 30, 2022), this Court concluded that the plaintiff failed to proffer
39
sufficient evidence that the employer’s “decisions were motivated by a desire to retaliate against
him.” Importantly, there was “no evidence” that the officer who took the plaintiff’s complaint
“ever told the officers involved in [his] disciplinary proceeding that [he] had complained to her.”
Id.Here, the parties present starkly different theories of the case, neither of which finds
conclusive proof in the evidence currently before the Court. On the Department’s telling,
O’Neal—who Kennedy accuses of orchestrating her removal—had no motive to punish
Kennedy. Willis was not a close friend of hers, and, in any event, she did not know that
Kennedy had complained about Willis on July 20, 2018 or had complained about her and Willis
on August 30, 2018, before the FRA formally requested that Dynamic-Pro remove Kennedy
from the contract. Instead, O’Neal was motivated by Kennedy’s poor performance. O’Neal was
not alone, moreover, in criticizing Kennedy’s performance. Pennington testified at deposition,
for example, that Kennedy was “given many chances on-site to do minimal tasks correctly and
that didn’t happen.” Dkt. 32-4 at 921–22 (Pennington Dep. at 118:21–119:3). And Tiwalde
Bello, an accounting officer with the FRA, testified that Kennedy did a poor job of assembling a
binder of materials for her, Dkt. 32-7 at 149–50 (Bello Dep. at 33:17–34:2), and failed properly
to maintain the office calendar, id. at 157 (Bello Dep. at 41:7–22). There is also evidence that
Kennedy struggled with RCFO’s procurement management system, known as PRISM. Dkt. 32-
4 at 1694-95 (O’Neal Decl. ¶ 8). In short, in the Department’s view, there is overwhelming
evidence that Kennedy was not up to the tasks she was required to perform, and no evidence that
the concerns that O’Neal and others expressed to Dynamic-Pro were based on retaliatory animus.
Unsurprisingly, Kennedy takes a very different view of the evidence. In her view,
O’Neal and Willis were friends—or they were at least close professional colleagues—and
40
O’Neal took offense when Kennedy complained about Willis’s alleged misconduct. Dkt. 39-1 at
198 (Pl. Ex. 4, Kennedy Dep. at 126:11–128:22). Although O’Neal denies that she knew about
Kennedy’s complaint before she urged the FRA contracting officer to demand that Dynamic-Pro
remove Kennedy from the contract, as explained, there is some evidence that she knew. For
example, as soon as Kennedy complained about Willis, O’Neal’s relationship with Kennedy
soured—and it soured in a highly suspicious manner. Id. (Pl.’s Ex. 4, Kennedy Dep. at 127:3–
18). Within a few weeks of her arriving at RCFO, O’Neal already purported to conclude that
Kennedy could not do the job, and she recommended Kennedy’s removal with remarkable (and
suspicious) speed. See Dkt. 39-6 at 40–41 (Pl.’s SDMF at ¶¶ 141–43). When Willis and O’Neal
would pass Kennedy in the hallway, “they would look directly at” her and laugh, Dkt. 39-1 at
199 (Pl.’s Ex. 4, Kennedy Dep. at 131:3–13), and, more importantly, O’Neal seems to have
opposed Kennedy’s return to work for Hess in the Government Affairs Office, even though Hess
welcomed her return, Dkt. 39-6 at 44–48 (Pl.’s SDMF at ¶¶ 151–61). Then, according to
Kennedy, O’Neal quickly agreed to place Kennedy on a PIP within RCFO, so that she could
maintain control over Kennedy’s destiny. Id. at 46–47 (Pl.’s SDMF at ¶¶ 159–60). But O’Neal
never intended to provide Kennedy with a chance to prove herself; she ignored improvements in
Kennedy’s performance, and, indeed, prepared an email recommending her removal just two
weeks into the 30-day PIP period. Id. at 39–40, 59 (Pl.’s SDMF at ¶¶ 134–39, 206).
It bears emphasis that, for present purposes, the Court is not the trier of fact; the Court’s
task is limited to deciding whether there is sufficient evidence of pretext and retaliatory purpose
to permit a jury to make its own assessment of the evidence. Applying that standard, and
41
recognizing that the question is nonetheless a close one, the Court is unpersuaded that it can—or
should—dispose of the question on summary judgment.
To start, there is substantial evidence supporting the Department’s contention that O’Neal
did not know about Kennedy’s protected EEO activity at the time she allegedly prompted
Kennedy’s removal, and lack of knowledge that the plaintiff engaged in protected activity is, of
course, highly probative against a finding of pretext. Dodson, 2022 WL 4598575, at *18. But
“[t]o survive summary judgment” a plaintiff need not proffer “direct evidence that his
supervisors knew of his protected activity; he need only offer circumstantial evidence that could
reasonably support an inference that they did,” Jones, 557 F.3d at 679, and, here, Kennedy points
to some circumstantial evidence that O’Neal knew. For one thing, Kennedy testified that her
relationship with O’Neal cooled immediately after Kennedy complained about Willis’s
conduct—and it cooled in a manner that a reasonable jury might find suspicious, given the fact
that Kennedy was suffering from a difficult pregnancy and was new to RCFO but was given very
little time to learn the ropes or to improve her performance. Moreover, although far from
conclusive evidence, a reasonably jury might place some weight on Pennington’s concession that
it is “possible” that she heard about Kennedy’s accusations against Willis from O’Neal, although
she could not recall how she heard. Dkt. 39-1 at 800–01 (Pennington Dep. at 227:4–228:15); see
also Dkt. 39-3 at 36–37 (Alvarenga Dep. at 20:17–21:1).
If this was all the evidence that Kennedy could muster, the Court might well conclude
that no reasonable jury could find that O’Neal knew about Kennedy’s complaint about Willis
before she urged Kennedy’s removal. One additional piece of evidence, however, tilts the scales
sufficiently in Kennedy’s favor to give the Court pause. On September 11, 2018, O’Neal sent
Willis an email chain addressing what the FRA should do about Kennedy. The email chain starts
42
in late August with the FRA contracting officer, Lee Anderson, expressing concern that the FRA
had not provided Dynamic-Pro with feedback about Kennedy’s performance and an opportunity
“to correct [her] performance.” Dkt. 39-3 at 155 (Pl.’s Ex. 56). Later that same day, Anderson
emails O’Neal suggesting three options: (1) “Get rid of [Kennedy];” (2) “Keep [her] in RCFO;”
or (3) “Move [her back] to ROA,” where she had worked for Hess. Id. at 154 (Pl.’s Ex. 56).
O’Neal, in turn, favored option two but with a PIP, prompting Anderson to reply: “But yesterday
we wanted to fire her . . . and we knew [that Dynamic-Pro] had a plan for corrective action at
that point already.” Id. at 152 (Pl.’s Ex. 56).
It is at this point in the chain that O’Neal adds Willis and drops Anderson (and another
FRA employee). She writes: “Marc, Please see Lee’s email below where he mentioned moving
[Kennedy back] to ROA.” Id. Willis, then, responds, “I hope [Pennington] talked him out of
this,” id. at 151 (Pl.’s Ex. 56), and O’Neal tells him, “I don’t know[,] however, just wanted to
make you aware,” id. The email chain ends with Willis saying, “Thanks for the heads up.” Id.
Kennedy argues that this email chain shows that O’Neal and Willis were, in fact, close;
that O’Neal was watching out for him; and that neither O’Neal nor Willis wanted Kennedy to
return to work for Hess, which would put her, once again, in proximity to Willis. There is
evidence, moreover, that Willis was aware that it was Kennedy who accused him of sexual
harassment. See Dkt. 39-1 at 188 (Kennedy Dep. at 88:20–25); Dkt. 39-6 at 28–29 (Pl.’s SDMF
¶ 97). A reasonable jury might read the email chain and O’Neal’s “heads up” as suggesting that
she too knew about Kennedy’s allegations of sexual harassment and that she wanted to protect
Willis in light of those allegations. And, in any event, the email chain supports Kennedy’s
contentions (1) that Willis did not want her to return to the office of the administrator (where she
was more likely to succeed), despite his claim—before seeing the email—that he would have
43
welcomed her back to replace Jensen, see Dkt. 42-1 at 78 (Def.’s Resp. to Pl.’s SDMF ¶ 166),
and (2) that O’Neal supported Willis in this objective and wanted to maintain control over the
FRA’s assessment of Kennedy’s performance through the PIP process, so that she could see to it
that Kennedy was removed. To be sure, there may be an entirely different explanation for why
O’Neal was giving Willis a “heads up,” but the Department has yet to offer one, and, in any
event, a reasonable jury could draw the inferences that Kennedy proposes.
This theory finds some additional support in the testimony of the FRA’s own contracting
officer, Lee Anderson. At deposition, he testified as follows:
Q. So, with respect to option number 3, we at least knew that Ms. O’Neal had
concerns about that, given the fact that she’s forwarding your e-mail to Mr.
Willis, right? You don’t have to agree or disagree with that, but it seems like
that’s pretty logical, right, so that left basically only option 2, which is to keep
her in RCFO and put her on a PIP, right?
A. Yes.
Q. And would you agree with me that if she’s put on a PIP in which she’s the
person who is charged with evaluating her performance on the PIP and therefore,
communicating that to you that, that would allow her to keep control of what
happens to Ms. Kennedy as opposed to if she gets moved over to ROA?
...
A. So, I would have relied on the feedback from [O’Neal] regarding
[Kennedy’s] performance as to whether or not she was making progress on the
PIP, but I mean the measures are -- the qualifications are pretty straight forward,
44
right, like keep the calendar up to date, go and show up to work on time, et
cetera, et cetera.
Q. Right, but Mr. Anderson, I'm asking you to put this all in context, right?
A. Sure.
Q. -- which is midway through the PIP, she’s already drafting an e-mail saying,
“Let’s get rid of her. We want her out. She’s not performing,” right?
A. Yes.
Q. Then, on top of that, you’re now being made aware of the fact that she’s a
subject of a retaliation complaint along with Mr. Willis who she’s informing of
the fact that you might want to move her to ROA. So, wouldn’t the fact that she
now decides to let her get on this PIP, wouldn’t that sort of clarify for you why
there was this change of mind, because she could now control what happens with
Ms. Kennedy – “Let’s put her on a PIP and let’s get rid of her?”
...
Q. Based on everything, she was the subject of a retaliation complaint. She’s
already telling you two weeks into a 30-day PIP, she wants her gone. She’s
informing her alleged co-conspirator, who is also the subject of a retaliation
complaint, that you might want to move her into ROA; isn't it possible that Ms.
O’Neal’s change of mind occurred because she realized that if she gets put on a
PIP that she could control Ms. Kennedy’s destiny by removing her after that 30-
day PIP?
...
A. Yultia doesn't have -- she wouldn't have unilateral authority to make that
happen, so again, I keep going back to this, but it would be a team effort between,
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I mean like everybody. So, does it appear suspicious, yes. Is that what actually
occurred, I can't remember.
Q. But even if she didn't have unilateral control, and that's not the point I wanted
to make, the point I wanted to make was that she could exercise substantial
influence over . . . Kennedy's success on that PIP, right?
...
A. Yes.
Q. And she could also exercise substantial control the messaging that goes to
you to substantiate her desire to get Ms. Kennedy removed from FRA as well?
...
A. Yes.
Dkt. 39-1 at 1054–58 (Anderson Dep. at 183:12–187:8) (emphasis added).
Other evidence might further support this theory as well, including a Skype chat from
Jensen to Kennedy, in which Jensen states that O’Neal and Willis “seem very close,” Dkt. 39-1
at 1571 (Pl.’s Ex. 17), and undisputed evidence that O’Neal “was regularly in . . . Willis’s office
space for the purposes of discussing work related matters,” Dkt. 42-1 at 53 (Def.’s response to
Pl.’s SDMF ¶ 110). The speed with which O’Neal moved to terminate Kennedy, moreover, at
least arguably supports an inference of improper motive. O’Neal was aware that Kennedy was
dealing with a difficult pregnancy and that she was new to RCFO. Yet, despite these obstacles,
O’Neal almost immediately concluded that Kennedy was not up to the job, and she quickly
moved to end Kennedy’s relationship with the FRA. The speed with which O’Neal acted caught
Kennedy’s Dynamic-Pro supervisor by surprise, promoting him to write to Anderson as follows:
I would very much like to discuss this before moving forward. Diamond has
only been in her new role for 5 weeks, supporting a brand new office replacing
someone who had been there for years. This new role entails a high level of
variance from her previous 2 roles in FRA where she first provided support to
another Admin III in the Front Office, then provided support to one Senior FRA
Employee for Government Affairs. During both of those previous roles, she
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received consistent accolades, with no issues with performance raised at any
point. In fact, prior to her moving to RCFO you may recall the person she
supported in Government Affairs was quite adamant that she not be removed
from supporting him. I find it highly unlikely that in her ~9 months of supporting
FRA without any issues and after a Senior member of FRA was quite upset to be
losing her, she suddenly cannot perform to expectations.
Dkt. 39-3 at 128 (Pl.’s Ex. 50) (emphasis added).
None of this, of course, conclusively establishes that O’Neal did, in fact, know about
Kennedy’s EEO protected activity, much less that she targeted Kennedy because of that activity.
Nor has the Court endeavored to marshal the evidence that the Department has cited in support
of its counternarrative. For present purposes, the Court merely concludes that Kennedy has
offered sufficient evidence to survive the Department’s motion for summary judgment on her
claim of retaliatory removal/termination. The parties will have ample opportunity to present all
of their evidence at trial, and it will be up to the jury to decide which version of events is the
more convincing.
The Court will, accordingly, deny the Department’s motion for summary judgment as to
Kennedy’s retaliatory removal/termination claim.
C. Failure to Accommodate Disability
Count III of Kennedy’s complaint alleges that the FRA failed to accommodate her
disability under the Rehabilitation Act, 29 U.S.C. § 701 et seq. 19-2666, Dkt. 1 at 18–20
(Compl. ¶¶ 74-84). As explained above, Kennedy became pregnant while working at the FRA
and suffered from hyperemesis gravidarum, a severe form of morning sickness. Dkt. 39-1 at 178
(Pl.’s Ex. 4, Kennedy Dep. at 45:14–48:9). As an accommodation, she requested a desk closer to
the bathroom and the ability to telework on days when her condition was particularly severe, as
travel exacerbated her nausea. Id. (Pl.’s Ex. 4, Kennedy Dep. at 48:16–18). According to
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Kennedy, she received neither accommodation before she was removed from the contract and
terminated by Dynamic-Pro. Id. at 179 (Pl.’s Ex. 4, Kennedy Dep. at 49:22–24)
The Department moves for summary judgment on Kennedy’s failure to accommodate
claim on two grounds: First, it argues that Kennedy was not an otherwise qualified individual
with a disability, and, second, it argues that she voluntarily abandoned the interactive process.
Because neither argument is convincing, the Court will deny the Department’s motion for
summary judgment on Kennedy’s failure to accommodate claim.
1. Kennedy’s qualifications for the position
“The Rehabilitation Act requires employers to provide ‘reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with a
disability . . . unless [the employer] can demonstrate that the accommodation would impose an
undue hardship on the operation of the [employer’s] business[.]’” Bonnette v. Shinseki, 907 F.
Supp. 2d 54, 77 (D.D.C. 2012) (alterations in original) (quoting 42 U.S.C. § 12112(b)(5)(A)).
To demonstrate that her employer failed to provide a reasonable accommodation, a plaintiff must
show that: “(1) she has a disability within the meaning of the statute; (2) the defendant had notice
of her disability; (3) she could perform the essential functions of the employment position with
or without reasonable accommodation; and (4) the defendant refused to make the
accommodation.” Id. “If the plaintiff establishes a prima facie case of failure to provide
reasonable accommodation, then it is up to the employer to demonstrate that the accommodation
would have imposed an undue burden on its business,” but “the ultimate burden . . . remains with
the plaintiff.” Id.For present purposes, the Department assumes that Kennedy’s condition is a disability
under the statute, Dkt. 32-1 at 42, and, absent any argument to the contrary, the Court will do
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likewise. Instead, the Department premises its attack on Kennedy’s prima facie case on the
contention that she “was . . . not qualified for the Administrative Assistant II position in the CFO
Office,” id., because she lacked “‘the requisite skill, experience, education, [or] other job-related
requirements’” for holding the position, id. (quoting 29 C.F.R. § 1630.2(m)), and because she did
“‘not give notice of [her] need for [an] accommodations until after’” the problems with her
performance were raised, id. (quoting EEOC, Applying Performance and Conduct Standards to
Employees with Disabilities (Sept. 3, 2008), https://www.eeoc. gov/laws/guidance/applying-
performance-and-conduct-standards-employees-disabilities).
“[T]o meet her burden of showing she was a ‘qualified individual entitled to the
Rehabilitation Act’s protections’ at the time of her termination, [Kennedy] must show by a
preponderance of the evidence at trial that she was ‘able to perform, with or without reasonable
accommodation, the essential functions of the employment position[.]’” Mitchell v. Pompeo,
No. 1:15-CV-1849 (KBJ), 2019 WL 1440126, at *5 (D.D.C. Mar. 31, 2019) (second alteration in
original) (quoting Solomon v. Vilsack, 763 F.3d 1, 5 (D.C. Cir. 2014)). This means that she must
have had the necessary skills and experience to “perform the essential functions of [the]
position,” with or without the requested reasonable accommodation. 29 C.F.R. § 1630.2(m).
Reviewing the extensive record on summary judgment, the Court concludes that the
determination whether Kennedy was a qualified person is a question for the jury. As detailed at
length above, there is evidence that Kennedy’s performance was poor and that perhaps she was
not qualified to stay in her current role. But Kennedy has offered competing evidence regarding
her qualifications and competency, including positive reviews from others at the FRA, as
reported by her supervisor at Dynamic-Pro. Perez noted in a November 2017 email to Kennedy,
for example, that “we heard great things about you[] from the Small Business Specialist as well,
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so it appears you are making wave[s] at FRA!” Dkt. 39-1 at 1160 (Pl.’s Ex. 10). The next
month, the FRA contracting officer at the time, Polkiewicez, forwarded to Perez feedback
indicating that Kennedy, among others, was “very professional and produce[d] good work.”
Dkt. 39-2 at 639. Hess testified at deposition that he did not have “any particular issues with
[Kennedy’s] performance.” Dkt. 39-1 at 1197 (Hess. Dep. at 36:5–13). And in response to
Anderson’s August 23 email indicating that the FRA hoped to replace Kennedy, Perez observed
that, “[d]uring both of [her] previous roles [at the FRA], she received consistent accolades, with
no issues with performance raised at any point.” Dkt. 39-3 at 128 (Pl.’s Ex. 50). This and other
evidence is sufficient to create a genuine issue of material fact as to whether Kennedy was a
qualified person entitled to Rehabilitation Act protections.
Beyond that, one of the most significant performance problems identified by the
Department—Kennedy’s tardiness—could have been resolved (or substantially mitigated)
through a reasonable accommodation, such as allowing her to sit at a desk closer to the bathroom
or permitting intermittent telework. See Dkt. 39 at 61. As the EEOC has explained, “[i]f a
reasonable accommodation is needed to assist an employee in addressing a performance
problem, and the employer refuses to provide one, absent undue hardship, the employer has
violated the ADA.” EEOC, Applying Performance and Conduct Standards to Employees with
Disabilities, supra; see also Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 143 (2d Cir.
1995) (“Failure to consider the possibility of reasonable accommodation for such disabilities, if it
leads to discharge for performance inadequacies resulting from the disabilities, amounts to a
discharge solely because of the disabilities.”). Thus, to the extent that the Department viewed
Kennedy as unqualified because of her frequent bathroom trips or tardiness in the morning, the
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Department’s failure to offer reasonable accommodations to resolve those performance issues
may itself constitute disability discrimination.
2. Interactive process
The Rehabilitation Act does not require “[e]mployers [to] give employees the exact
accommodations they request.” Spector v. District of Columbia, No. 1:17-CV-01884 (CJN),
2020 WL 977983, at *6 (D.D.C. Feb. 28, 2020). The law does, however, require that the parties
engage in a constructive dialogue in order to find an accommodation, and that dialogue requires
the exchange of “information about the nature of the individual’s disability and the desired
accommodation—information typically possessed only by the individual or her physician.”
Ward v. McDonald, 762 F.3d 24, 31 (D.C. Cir. 2014). The required back-and-forth between the
employer and the employee that is necessary to identify an appropriate, reasonable
accommodation is called the “interactive process.” Id. at 32; see also Ali v. Pruitt, 727 F. App’x
692, 695 (D.C. Cir. 2018). The interactive process requires “‘a flexible give-and-take’ between
employer and employee ‘so that together they can determine what accommodation would enable
the employee to continue working.’” Ward, 762 F.3d at 32 (quoting EEOC v. Sears, Roebuck &
Co., 417 F.3d 789, 805 (7th Cir. 2005)).
The governing regulations reflect this requirement:
To determine the appropriate reasonable accommodation[,] it may be necessary
for the [employer] to initiate an informal, interactive process with the individual
with a disability in need of the accommodation. This process should identify
the precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.
29 C.F.R. § 1630.2(o)(3). Importantly, “‘[n]either party should be able to cause a breakdown in
the process for the purpose of either avoiding or inflicting liability.’” Ward, 762 F.3d at 32(quoting Sears, 417 F.3d at 805). Courts therefore ask whether one of the parties declined to
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participate in the process in good faith. Id. “A party that obstructs or delays the interactive
process,” for example, “is not acting in good faith,” nor, generally, is “[a] party that fails to
communicate, by way of initiation or response.” Id. (quoting Sears, 417 F.3d at 805).
Viewing the facts in the light most favorable to Kennedy, as the Court must at this stage
of the proceeding, a reasonable jury could find that it was the Department—and not Kennedy—
that ended the interactive process or failed to participate in that process in good faith. There is
evidence, for example, indicating that at least seven desks were open and available near the
women’s bathroom. Dkt. 39-1 at 179 (Pl.’s Ex. 4, Kennedy Dep. at 50:1–6). Yet, despite
requesting that accommodation on September 5, 2018, Kennedy was not relocated as of her
termination on October 1, raising some question about the FRA’s good faith efforts to find and
promptly to implement a reasonable accommodation. See Dkt. 39-6 at 52, 79 (Pl.’s SDMF
¶¶ 179–80, 282); Dkt. 42-1 at 83–84, 128 (Def.’s Response ¶¶ 179–80, 282). When that delay is
situated amongst the other evidence that could support a finding that O’Neal wanted to remove
Kennedy, regardless of whether she spent too much time away from her desk, it takes on greater
force. And it takes on still greater force in light of the Department’s arguably anemic response:
that it had to jump through various bureaucratic hoops merely to move O’Neal’s desk. Dkt. 42 at
27 (“[T]he issue of relocating Plaintiff’s desk was not as straight-forward as Plaintiff believed it
to be”).
A reasonable jury could also find that certain FRA communications suggest that the
agency was not engaged in good faith in the interactive process. Just minutes after Perez sent an
email to Whiting, O’Neal, and Noah seeking to discuss the interactive process, for example,
O’Neal responded that “[u]nfortunately, [Kennedy] will not be permitted to telework in lieu of
sick leave. If she is not feeling well, [Kennedy] will need to request sick or personal leave from
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DPI.” Dkt. 39-4 at 201–02 (Pl.’s Ex. 73). A reasonable jury could also find that the
Department’s counter-proposal—requiring Dynamic-Pro to have another person in the office on
days Kennedy teleworked—was not made in good faith. See Dkt. 39 at 67–68. O’Neal wrote,
“[a]s an alternative accommodation, FRA is willing to have another person work in the office on
the days [Kennedy] is teleworking if DPI can guarantee that the individual is qualified as a[n]
Admin Support II.” Dkt. 39-4 at 255–56 (Pl.’s Ex. 78). It is far from clear that O’Neal
reasonably believed that Dynamic-Pro could feasibly pay two individuals to perform the work of
one employee, merely to avoid permitting one employee to telework two to three times a week.
See, e.g., Dkt. 39-1 at 528–30 (Perez Dep. 243:2–245:1) (explaining that this was not “a feasible
alternative accommodation in [his] mind” because DPI “would essentially have to have people
go through the clearance process, but not actually be on the [c]ontract and waiting”); Dkt. 39-2 at
785 (Whiting Dep. 132:6–12).
In arguing that it was Kennedy who abandoned the interactive process, the Department
focuses on one email she sent. On September 28, 2018, Perez emailed Kennedy about the
progress of her accommodations request and, as to the telework request, wrote, “Please let me
know if you would like to continue the interactive dialogue on your 2nd request, if so we can
arrange time to speak to move the process forward on other potential options.” Dkt. 39-4 at 270
(Pl.’s Ex. 80). Kennedy responded that day, “So overall nothing was accomplished in this week
and [a] half to two weeks of my request.” Id. In the Department’s view, this email ended the
interactive process. But the Department ignores Kennedy’s other email to Perez that same day
affirming, “I want you to also understand I am flexible and willing to work out a way on my end
as well,” and offering a possible counterproposal. Id.; see also Dkt. 42 at 27 (admitting that “the
Secretary acknowledges that he overlooked this email in its review of discovery”). In other
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words, she expressed a desire to continue the interactive process, which the FRA arguably
ignored.
For all these reasons, the Court concludes that there is a genuine issue of material fact as
to whether Kennedy abandoned the interactive process or whether, instead, the Department failed
to engage in good faith back-and-forth, effectively denying her accommodations request. The
Court, accordingly, will deny the Department’s motion for summary judgment as to Count III.
CONCLUSION
For the foregoing reasons, the Department’s motion for summary judgment, Dkt. 32, is
hereby GRANTED in part and DENIED in part. The motion is GRANTED with respect to
Kennedy’s claim of a hostile work environment based on gender (Count I), and her claim of a
retaliatory hostile work environment (a portion of Count II), but it is DENIED with respect to
her retaliatory removal/termination claim (the other portion of Count II) and her claim that the
Department failed to accommodate her disability (Count III).
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 17, 2023
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