Husain v. Warren

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MUSARRAT ROOHI HUSAIN,
Plaintiff,
v. Civil Action No. 15-708 (RDM)
JOHN BARSA, in his official capacity as
Acting Administrator, U.S. Agency for
International Development,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s motion for summary judgment. Dkt. 83.
Plaintiff Musarrat Roohi Husain alleges that Defendant U.S. Agency for International
Development (“USAID”) discriminated against her on the basis of her race, sex, religion, and
national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq. (Count II), Dkt. 46 at 28–29 (2d Am. Compl. ¶¶ 137–43); retaliated
against her for filing Equal Employment Opportunity (“EEO”) complaints, also in violation of
Title VII (Count I), id. at 26–28 (2d Am. Compl. ¶¶ 128–36); and discriminated against her by
denying her reasonable accommodations for her disabilities, in violation of the Americans with
Disabilities Act of 1973 (“ADA”), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973
as amended (“Rehabilitation Act”), 29 U.S.C.§ 701 et seq. (Count III), Dkt. 46 at 29–30 (2d Am.
Compl. ¶¶ 144–49). Defendant moves for summary judgment as to all claims. Dkt. 83.
For the reasons explained below, the Court will grant USAID’s motion for summary
judgment with respect to Plaintiff’s Title VII and ADA claims and will deny the motion with
respect to her Rehabilitation Act claim.
I. BACKGROUND
A. Factual Background
The events giving rise to this case unfolded over the course of roughly three years, from
2012 to 2015. Plaintiff, proceeding pro se through most of this litigation, has submitted
hundreds of pages of documents but continues to refer to these materials at only a high level of
generality, without reference to specific pages or passages. See, e.g., Dkt. 87-1 at 10 (claiming
that “173 pages of email communications by Plaintiff’s [u]nion [r]epresentative . . . explain[] all
issues very clearly from the beginning to the end, 2013–2014”); Husain v. Smith, No. 15-cv-708
(RDM), 2016 WL 4435177, at *1 (D.D.C. Aug. 19, 2016) (“Husain I”) (noting that Husain has
filed more than 500 pages to the docket, but refers generally to “‘the exhibits’ . . . without
specifying where in the lengthy series of exhibits the supporting documents can be found”). As
the Court explained in its decision at the motion-to-dismiss stage, it is not the Court’s role to
hunt through the record in search of facts that might support Plaintiff’s claims. See Husain, 2016
WL 4435177, at *1 (declining to ‘“assume the role of advocate”’ for Plaintiff) (quoting Miller v.
Kemp, No. 11-cv-0530, 2012 WL 1592537, at *3 (N.D. Okla. May 4, 2012)). Accordingly, the
Court relies principally on Defendant’s statement of undisputed material facts, Dkt. 83-2, which
Plaintiff does not controvert in her opposition, Dkt. 87, despite the Court’s admonitions (1) that
Plaintiff’s opposition should be accompanied by a statement of facts that are in dispute; (2) that
the Court would “accept as true any [uncontroverted] factual assertion supported by . . . evidence
submitted with [Defendant’s] motion;” and (3) that, to controvert such a factual assertion,
Plaintiff would need to offer her own evidence and would need to cite “‘to particular parts of
materials in the record,’” Dkt. 85 at 2–3 (quoting Fed. R. Civ. P. 56 (c)(1)). With that backdrop,
the Court turns to uncontroverted facts.
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Plaintiff is “a foreign-born, Asian woman of the Muslim faith” “raised and educated in
Zambia.” Dkt. 46 at 2, 28 (2d Am. Compl. ¶¶ 3, 139). She began working at USAID in March
2011 as a GS-13 Management and Program Analyst, Dkt. 83-2 at 1 (SUMF ¶ 1), and received a
promotion to GS-14 on January 29, 2012, id. (SUMF ¶ 2). A little more than a month later, on
March 2, 2012, Plaintiff gained a one-year approval to telework on Wednesdays, with every
other Friday off, and possible ad hoc telework as needed, id. at 1 (SUMF ¶ 3); Dkt. 83-11 (Ex.
9); Dkt. 83-13 at 2 (Ex. 11). This agreement had many conditions. To obtain permission to
telework, Plaintiff agreed that her supervisor could “call [her] back to the traditional worksite at
any time;” that Plaintiff would “complete all assigned work according to procedures mutually
agreed upon by [Plaintiff] and [her] supervisor” in accordance with Plaintiff’s work plan; and
that Plaintiff would “provide regular reports if required by [her] supervisor to help assess
performance.” Dkt. 83-11 at 2–3 (Ex. 9).
On April 9, 2012, just weeks after obtaining permission to telework on certain days,
Plaintiff was reassigned to the Office of Learning, Evaluation and Research (“LER”) at the
Bureau for Policy, Planning, and Learning (“PPL”) , Dkt. 83-2 at 1 (SUMF ¶ 4); Dkt. 46 at 2
(2d. Am. Compl. ¶ 6); Dkt. 83-4 at 36 (Ex. 2). After transferring to that office, Plaintiff began
developing a work plan with her supervisor, Cynthia Clapp-Wincek. Dkt. 83-2 at 1 (SUMF
¶¶ 4–5); Dkt. 83-7 at 6 (Clapp-Wincek Aff.) (Ex. 5). They “had multiple and fairly lengthy
conversations” and “drafted and redrafted” a work plan, but for reasons not made clear in the
record, Plaintiff wanted to continue these discussions and declined to sign the plan ultimately
completed by Clapp-Wincek on May 23, 2012. Dkt. 83-7 at 6 (Clapp-Wincek Aff.) (Ex. 5); see
also Dkt. 83-2 at 1–2 (SUMF ¶¶ 5–6); Dkt. 83-4 at 36 (Ex. 2). Around the same time, Plaintiff
informed Clapp-Wincek that she planned to take “six weeks of medical leave because she had
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mononucleosis.”1 Dkt. 83-7 at 6 (Clapp-Wincek Aff.) (Ex. 5). Clapp-Wincek shared this
information with staff to explain Plaintiff’s absence and in contemplation of sending a get-well
card. Id. After doing so, Clapp-Wincek was informed that she should not have disclosed
Plaintiff’s private medical information. Id.After Plaintiff leveled allegations of “biased supervision” against Clapp-Wincek, Dkt.
83-7 at 7 (Clapp-Wincek Aff.) (Ex. 5), PPL management assigned Clapp-Wincek’s supervisor,
Larry Garber, to serve as Plaintiff’s supervisor upon her return from sick leave in October 2012,
Dkt. 83-2 (SUMF ¶ 7); Dkt. 83-5 at 5 (Garber Aff.) (Ex. 3). Around this time, Plaintiff
communicated to Garber that she was interested in transferring out of PPL to a different office.
Dkt. 46 at 5 (2d Am. Compl. ¶ 19); Dkt. 49 at 4 (Ans. to 2d Am. Compl. ¶ 19). Although Garber
and Plaintiff discussed new work projects for Plaintiff, they never formally revised the work plan
developed by Clapp-Wincek. Dkt. 83-14 at 2 (Ex. 12); 83-5 at 6 (Garber Aff.) (Ex. 3). During
the time that Garber served as Plaintiff’s supervisor, a number of separate controversies arose.
The Court discusses each below.
1. Russia History Project and Telework Conditions
In November 2012, Plaintiff was assigned to work on a “Russia History Project
documenting USAID’s involvement in Russia.” Dkt. 83-2 at 2 (SUMF ¶ 8). During the months
that followed, Plaintiff was not always able or willing to work on the Russia History Project. On
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Clapp-Wincek’s affidavit, Dkt. 83-7 at 6 (Clapp-Wincek Aff.) (Ex. 5), and doctors’ notes from
April and May 2012 discussed in greater detail below, suggest that this sick leave occurred in
April and May 2012, as early as Plaintiff’s first day at PPL. The affidavit of Plaintiff’s
subsequent supervisor, Larry Garber, however, refers only to a sick leave from August to
October during 2012. Dkt. 83-5 at 9 (Garber Aff.) (Ex. 3). This latter timeframe is consistent
with a second round of doctors’ notes, discussed below. Overall, the record suggests that
Plaintiff took two extended periods of sick leave during 2012, but resolving this matter
decisively is not necessary to deciding the motion before the Court.
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March 15, 2013, for example, she “informed her chain of command that from February to mid-
March she had concentrated her time on a self-initiated diversity project instead of the Russia
History Project she had been assigned.” Id. (SUMF ¶ 11); see also Dkt. 83-16 at 2–3 (Ex. 14).
PPL was working on the Russia History Project with another USAID office, and the project
developed according to the partnering office’s needs. On April 12, 2013, Garber emailed
Plaintiff and another employee, Al Decie, and instructed them “to review [twelve] chapters
prepared by another team and [to] prepare a [fifteen-to-thirty]-page paper based on those
chapters and other specified materials.” Dkt. 83-2 at 2 (SUMF ¶ 12). Garber also requested that
they send him “a notional timeline” for completing these tasks on or before April 19, 2013. Dkt.
83-17 at 4 (Ex. 15). Three days later, on April 15, 2013, Garber sent another email explaining
that he hoped the tasks would be completed within four-to-six weeks. Id. at 2 (Ex. 15).
Although he sent one more follow-up email on April 25, 2013 asking for the requested timeline,
id., he never received the summary from Plaintiff, Dkt. 83-2 at 3 (SUMF ¶ 13).
One month later, on May 26, 2013, Garber forwarded correspondence regarding the
Russia History Project to Plaintiff outlining further developments: the partnering office had hired
a contractor and no longer needed PPL’s help to complete the project. Dkt. 83-28 at 2–3 (Ex.
26); Dkt. 83-2 at 6 (SUMF ¶ 26). Garber asked Plaintiff to let him know “what loose ends, if
any, [Plaintiff] need[ed] to finish up regarding” the project. Dkt. 83-28 at 2 (Ex. 26); Dkt. 83-2
at 6 (SUMF ¶ 26). In the same email, Garber asked Plaintiff to provide, by June 3, 2013, a one-
page summary of the work she had done on the project and, by June 15, 2013, a three-to-five-
page summary of what PPL should learn from the exercise. Id. Garber iterated this request in
another email to Plaintiff on May 29, 2013, Dkt. 83-2 at 6 (SUMF ¶ 27); Dkt. 83-29 at 2 (Ex.
27), and again on June 12, 2013, Dkt. 83-2 at 8 (SUMF ¶ 33); Dkt. 83-33 at 2 (Ex. 31).
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Meanwhile, in March 2013—around the time that Plaintiff informed her supervisors that
she had not worked on the Russia History Project for a month and a half—Plaintiff asked to
renew her telework agreement from the year before. Dkt. 83-5 at 9 (Garber Aff.) (Ex. 3).
Garber had become “concerned that [Plaintiff] was not undertaking USAID-related work while
[teleworking] and, as per the [telework] agreement, was not keeping [him] adequately informed
regarding what she was doing.” Id. at 10 (Garber Aff.) (Ex. 3). He therefore declined to renew
Plaintiff’s telework request for a year, and instead approved telework for two months. Id. In
addition, on May 1, 2013, Garber told Plaintiff that he “require[d] a better mechanism for
keeping track of [her] on-going work” and asked for a daily email indicating whether she was in
the office or teleworking, with “bullet points listing work-related actions for the day.” Dkt. 83-
19 at 2 (Ex. 17); Dkt. 83-2 at 3 (SUMF ¶ 15). He also said that he wanted to formalize
Plaintiff’s 2013 work plan within the next two days. Dkt. 83-19 at 2 (Ex. 17). Garber required a
daily check-in only of Plaintiff, because, according to Garber, “[n]o one else was using
[telework] at the time in the same manner as [Plaintiff],” and, moreover, “when other employees
[teleworked], [Garber] was reasonably confident that [he] knew what they were doing.” Dkt. 83-
5 at 11 (Garber Aff.) (Ex. 3). Plaintiff responded to this new requirement not by sending the
requested daily update, but by sending a weekly email, discussing at a general level the projects
she would be working on “each day, at [her] desk and on [telework] days.” Dkt. 83-2 at 7–8
(SUMF ¶¶ 28–29, 32).
On June 15, 2013, instead of providing Garber with the three-to-five-page summary that
he requested of lessons for PPL from the Russia History Project, Plaintiff submitted a nineteen-
page document consisting largely of her criticism of Garber and his supervisor, Susan Reichle.
Dkt. 83-2 at 8 (SUMF ¶ 34). In this document, Plaintiff asserted, among other things, that
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Garber’s request in late May (presumably referring to the request for a one-page summary of
Plaintiff’s work and a three-to-five-page summary of lessons learned) amounted to “ask[ing]
[her] to deliver the impossible within [Garber’s] own stipulated impossible timeframe;” that
Garber had not responded to Plaintiff’s requests for guidance; and that Plaintiff had not been
provided adequate time or information throughout the project. Dkt. 83-34 at 2–5 (Ex. 32). Two
weeks later, on June 30, 2013, Garber wrote to Plaintiff explaining that her June 15 submission
did “not reflect the product that [one] would expect from someone at [Plaintiff’s] grade level,”
because Plaintiff had “challeng[ed] the basis for the assignment” rather than summarizing
lessons learned. Dkt. 83-38 at 2 (Ex. 36); Dkt. 83-2 at 9 (SUMF ¶ 37).
2. Unauthorized Speaking Engagements
Plaintiff’s supervisors were concerned not only with what Plaintiff was failing to
accomplish while teleworking but also with what she was actually doing. On May 1, 2013, in
the same email in which Garber required Plaintiff to send him daily work reports, Garber noted
that he had learned that Plaintiff was “advertised as a speaker at a May 6 event at the University
of Maryland School of Social Work talking about jobs in the U.S. government.” Dkt. 83-19 at 2
(Ex. 17); see also Dkt. 83-2 at 3 (SUMF ¶ 16). Garber noted that he did “not recall receiving a
request” from Plaintiff to participate in the event and, “given both the subject matter and the time
of the presentation, formal approval from [Plaintiff’s] supervisor . . . [was] required before
accepting such invitations.” Dkt. 83-19 at 2 (Ex. 17). Despite this admonition and without
obtaining permission, Plaintiff spoke at the University of Maryland on May 6, 2013 about how to
get a federal government job, and materials produced for the event disclosed Plaintiff’s position
at USAID. Dkt. 83-2 at 3 (SUMF ¶ 17); Dkt. 83-20 at 2 (Ex. 18). Plaintiff had also
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participated—without clearance—in such a panel at the University of Maryland on April 8,
2013. Dkt. 83-20 at 2 (Ex. 18); Dkt. 46 at 7 (2d Am. Compl. ¶ 35).
On May 20, 2013, Garber sent Plaintiff a notice of a proposed three-day suspension. Dkt.
83-20 at 2–5 (Ex. 18). The memorandum justified the suspension on three grounds: (1) failure to
obtain clearance for the two University of Maryland events, including participating in the second
event on a day that Plaintiff had sought and been granted sick leave; (2) violating federal
regulation 5 C.F.R. § 2635.807(b), which allows government employees to reference their titles
in such panels only as one of several biographical facts; and (3) refusing to honor Garber’s
request for daily email updates. Id. at 2–4 (Ex. 18). Plaintiff did not respond to the charges,
despite receiving multiple extensions to do so. Dkt. 83-4 at 39 (Ex. 2). On July 2, 2013, Reichle
sent Plaintiff a decision on the proposed three-day suspension of Plaintiff, imposing a suspension
of two days. Dkt. 83-39 at 2–4 (Ex. 37).
3. Performance Evaluation and Training Requests
Plaintiff’s 2012 performance evaluation, which Garber developed during late 2012 and
early 2013, generated yet another controversy. On November 21, 2012, Garber requested that
Plaintiff submit a “self-assessment” to help him prepare her evaluation, and, in response,
Plaintiff submitted several letters of reference to Garber. Dkt. 83-2 at 2 (SUMF ¶ 9); Dkt. 83-14
at 2 (Ex. 12); Dkt. 83-15 at 3–22 (Ex. 13). Although these references were highly positive, they
did not describe her work for PPL, Dkt. 83-2 at 2 (SUMF ¶ 9); in fact, one letter was dated
“February 24, 1998,” Dkt. 83-15 at 16 (Ex. 13), and none of the letters were dated later than May
2012, id. at 3–22 (Ex. 13). Plaintiff also provided Garber with “a four[-]inch thick binder” of her
accomplishments to inform his evaluation. Dkt. 83-5 at 6 (Garber Aff.) (Ex. 3).
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On January 22, 2013, Garber met with Plaintiff to give her a preliminary oral assessment
of her performance. Id. Plaintiff received her final 2012 performance evaluation on April 26,
2013. Dkt. 83-2 at 3 (SUMF ¶ 14); Dkt. 83-18 at 2 (Ex. 16); Dkt. 83-12 at 2–9 (Ex. 10). The
evaluation’s written comments praised Plaintiff’s work, and she received the second highest
score, “Exceeds Fully Successful.” Dkt. 83-12 at 2–9 (Ex. 10). Plaintiff objected that she should
have received the highest score, “Outstanding;” asserted that Garber had not adequately
reviewed the materials she provided him; and further objected that Garber had not been her
manager for the minimum 90-days in 2012 to complete the review. Dkt. 83-3 at 3 (EEO
Compl. ¶ 1) (Ex. 1); Dkt. 83-4 at 18–19 (Ex. 2); Dkt. 46 at 6 (2d Am. Compl. ¶ 28). She
therefore declined to sign the evaluation. Dkt. 83-4 at 18–19 (Ex. 2).
Garber also played a role in Plaintiff’s access (or lack of access) to career development
opportunities. Throughout 2012 and 2013, Plaintiff made frequent requests to Garber that she be
allowed to participate in career training sessions and expressed interest in “temporary duty”
assignments. Dkt. 83-2 at 10 (SUMF ¶ 43); Dkt. 83-4 at 23–24 (Ex. 2). Except for two training
events in 2013, Garber denied each of her requests. Dkt. 83-4 at 24 (Ex. 2). He did not
recommend Plaintiff for any temporary duty opportunities because no opportunities “came to
[his] attention of the sort that [Plaintiff] was interested [in] or that [he] was confident that she
could professionally complete.” Dkt. 83-5 at 12 (Garber Aff.) (Ex. 3); see also Dkt. 83-4 at 24
(Ex. 2).
By July 2013, Plaintiff began to claim that Garber was not her legitimate manager. On
July 9, 2013, she refused to meet with Garber to discuss her mid-year appraisal and, indeed,
refused to meet with him to discuss any topic because she did not view him as her supervisor,
notwithstanding his role as Office Director of PPL. Dkt. 83-2 at 9 (SUMF ¶ 38); Dkt. 83-4 at 19
9
(Ex. 2). The basis for Plaintiff’s belief, evidently, was that she had received only “informal[] and
verbal[]” notice that Garber was her manager, which did not constitute sufficient “evidence” of
his role. Dkt. 83-3 at 4 (EEO Compl. ¶ 25) (Ex. 1). In an email that Plaintiff sent to Garber on
July 9, 2013, she claimed that he was not her “official supervisor and yet [he] continue[d] to
subject [her] to worse forms of retaliation, threats, abuse of [his] federal authority, hostile work
environment and deep[-]rooted harassment as evident in [his] emails since May 16, 2013.” Dkt.
83-40 at 2 (Ex. 38); see also Dkt. 83-2 at 9 (SUMF ¶ 39). Plaintiff asserted that responding to
Garber’s emails had become a burdensome part of her daily work. Dkt. 83-40 at 2 (Ex. 38). She
further explained that, going forward, she would dedicate her time to working on a diversity
initiative and developing an Equal Employment Opportunity complaint. Id.; Dkt. 83-2 at 9
(SUMF ¶ 39).
4. Plaintiff’s Health, Requests for Accommodation, and EEO Complaints
Throughout her time at PPL, Plaintiff repeatedly took leave from work at the
recommendation of her doctors. Although the exact amount of leave requested or taken is not
evident from the record, Plaintiff has submitted multiple letters from her doctors recommending
sick leave or telework, which provide some idea of Plaintiff’s health issues during this time. As
early as April 6, 2012, three days before Plaintiff joined PPL, her primary care physician wrote a
“To Whom It May Concern” letter recommending that Plaintiff rest. Dkt. 87-5 at 32 (Ex. 5).
The same primary care physician wrote a letter recommending that she rest each of the following
two weeks. Id. at 30–31 (Ex. 5). On April 20, 2012, an infectious diseases physician advised
rest for the following week, id. at 29 (Ex. 5), and for the week after that, id. at 28 (Ex. 5).
(Although it is not entirely clear from the record that Plaintiff did in fact take medical leave
during this time, it seems that these letters reference the same six-week leave that Clapp-Wincek
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references in her affidavit.) See Dkt. 83-7 at 6 (Clapp-Wincek Aff.) (Ex. 5) (referencing a six-
week period of leave during April and May 2012). On May 14, 2012, the infectious diseases
physician wrote a third “To Whom It May Concern” letter, explaining that Plaintiff had “a
probable viral illness that [had] been exacerbated by stress at work.” Dkt. 87-5 at 27 (Ex. 5). He
said that Plaintiff should “continue to telecommute for work until [] May 17” and that she was
“medically cleared to physically return to work full time on May 17.” Id.Before long, however, Plaintiff experienced further health issues. On August 15, 2012, a
hospital emergency department referred Plaintiff to a pulmonology and critical care practice,
where a doctor wrote a letter recommending that Plaintiff take medical leave “from her stressful
work environment,” noting that Plaintiff exhibited “vocal cord dysfunction . . . precipitated by
psychological stress.” Dkt. 87-5 at 26 (Ex. 5). According to the doctor, Plaintiff had enrolled in
speech therapy to help relax her larynx. Id. On August 20, 2012, Plaintiff’s infectious diseases
doctor wrote a letter noting that Plaintiff “continued to have marked fatigue[,] . . . exacerbated by
the stress of her job” and that Plaintiff had been seen in the emergency room on two separate
occasions for “severe chest pain and the possibility of pulmonary emboli,” the latter of which
was ruled out with tests. Id. at 25 (Ex. 5).
On August 24, 2012, Plaintiff’s primary care physician wrote a letter recommending that
Plaintiff be transferred to a different office, explaining that “[s]pecialists have opined that
work[-]related stress has been a significant contributing factor to [Plaintiff’s symptoms] and
transferring to another office would help alleviate her symptoms.” Id. at 24. Neither this letter
nor any of the other letters identify what conditions specific to PPL caused this stress, but,
according to Plaintiff, “unfavorable discriminatory treatment and marginalization,” including
having her remarks cut off in meetings, a delay in receiving her annual evaluation form, a delay
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in receiving her work plan, and a denial of requests for trainings that non-minority employees
received caused her “physical illness and mental stress.” Dkt. 46 at 3 (2d Am. Compl. ¶¶ 9–10).
In light of the health concerns raised by her doctors, Plaintiff received approval for sick leave
from August 31 to October 8, 2012. Dkt. 83-5 at 9 (Garber Aff.) (Ex. 3). In the months
immediately following Plaintiff’s return to work, one of her doctors wrote three more letters
recommending telework for varying periods of time, although the letters did not mention
work-related stress as a cause. Dkt. 87-5 at 21–23 (Ex. 5).
On May 6, 2013, Plaintiff emailed Reichle (copying others) to request situational
telework for medical reasons from May 8 to May 24, 2013. Dkt. 83-2 at 3 (SUMF ¶ 18); Dkt.
83-21 at 2–3 (Ex. 19). In her email, Plaintiff alleged that Reichle “fully support[ed] [Garber’s]
abuse, bullying, [and] reprisal,” which created a “hostile work environment,” and that Reichle
also “dismiss[ed] all measures to” rid the workplace “of discriminatory practices for [Plaintiff]
and other [m]inority employees (particularly under PPL/LER).” Dkt. 83-21 at 2 (Ex. 19). To the
extent that Plaintiff cited specific actions by Garber or Reichle, Plaintiff claimed that Garber was
the first supervisor in her career to “raise[] issues” about her telework; that Reichle had
sanctioned her; and that both Garber and Reichle were “discrediting [her] good name and
providing negative reference[s].” Id. at 3 (Ex. 19). Claiming that she had “been working under
extreme emotional and physical distress solely from [a] hostile work environment . . . since
October 2012,” Plaintiff’s email to Reichle demanded that she “be immediately removed from
th[is] hostile work environment and [placed] under a different [s]upervisor who is not hostile.”
Id. at 2–3 (Ex. 19). Plaintiff attached to her email a letter from her psychiatrist, F. J. Pepper,
M.D., who would go on to write many letters on her behalf. Dkt. 83-2 at 3–4 (SUMF ¶ 18).
According to Dr. Pepper, Plaintiff suffered “from severe anxiety, depression, and fear, resulting
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from a hostile work environment created by her immediate supervisor” and should “be placed
under a different supervisor[] immediately.” Dkt. 83-22 at 74 (Ex. 20). He also recommended
sick leave on May 6 and 7, 2013 (during which Plaintiff made a panel appearance at the
University of Maryland) and recommended that she telecommute from May 8 through May 24,
2013. Id.Two days after Plaintiff sent this email, she received a response from Ann Kaufmann,
Reasonable Accommodation Manager at USAID’s Office of Civil Rights and Diversity
(“OCRD”). Dkt. 83-2 at 4 (SUMF ¶ 19). Kaufmann attached two forms for Plaintiff to fill out:
(1) a request-for-reasonable-accommodation form requiring a description of the medical
condition requiring accommodation and the specific accommodation requested, and (2) an
authorization form allowing Plaintiff’s doctors to release her medical information to USAID.
Dkt. 83-23 at 3–4 (Ex. 21). The same day, Kaufmann sent Plaintiff a “reasonable
accommodation interactive dialogue plan” and stressed that, “until [she] receive[d] a description
of the essential functions of [Plaintiff’s] job and [] daily tasks, [she could not] send [Plaintiff] the
medical questionnaire.” Dkt. 83-24 at 2 (Ex. 22); Dkt. 83-2 at 4 (SUMF ¶ 20). As Kaufmann
explained, she “need[ed] to describe the daily tasks and essential functions of [Plaintiff’s] job in
the letter to [her] doctor so he [could] properly answer the questionnaire.” Dkt. 83-24 at 2
(Ex. 22). Plaintiff, however, emailed Kaufmann on May 16, 2013, asserting, “For OCRD record
keeping purposes, I did not request . . . reasonable accommodation.” Dkt. 83-25 at 2 (Ex. 23);
Dkt. 83-2 at 5 (SUMF ¶ 22). Plaintiff did not explain this decision, other than referring to a
“very clear conflict of interest[] and lack of OCRD responsibility about this process.” Dkt. 83-
25 at 3 (Ex. 23). That same day, she advised OCRD of her intention to file an EEO complaint.
Dkt. 83-2 at 5 (SUMF ¶ 23).
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On June 21, 2013, shortly after sending her critique of the Russia History Project and
shortly before receiving the final decision on her suspension, Plaintiff filed her first, formal EEO
complaint, which she then amended several times over the next four months. Dkt. 83-2 at 8
(SUMF ¶ 35). Plaintiff alleged discrimination based on her “sex (female), race (Asian), religion
(Islam), national origin (Zambia), age (DOB 1962), color (unspecified)[,] and reprisal [due to her
opposition to discrimination].” Dkt. 83-3 at 3 (Ex. 1). Although Plaintiff’s charges ranged
widely, they can be grouped into a few categories: (1) dissatisfaction with the timeliness and
content of her 2012 performance evaluation, her 2012 and 2013 work plans, and her 2013 mid-
year review; (2) dissatisfaction with the conditions that Garber imposed on her teleworking;
(3) denial of most training and career development requests; (4) dissatisfaction with the timing
and feedback of the Russia History Project; (5) her suspension; and (6) generalized allegations of
a hostile work environment. Dkt. 83-3 at 3–4 (Ex. 1).
On June 26, 2013, Plaintiff “wrote to approximately 80 managers and employees and
included attachments exceeding 120 pages of documents,” evidently to raise concerns about
USAID’s handling of diversity in its workforce. Dkt. 83-2 at 9 (SUMF ¶ 36); see also
Dkt. 83-37 at 2–3 (Ex. 35). On July 11, 2013, Plaintiff “included dozens of other USAID
personnel (including [USAID] Administrator Rajiv Shah) on a multi-page email to Garber
regarding his critique of her Russia History Project submission.” Dkt. 83-2 at 9 (SUMF ¶ 40);
see also Dkt. 83-41 at 3–4 (Ex. 39). In the email, Plaintiff alleged that Garber had never raised
issues about her performance before his feedback on the Russia History Project and that, in any
event, he was not her official supervisor. Dkt. 83-41 at 3–4 (Ex. 39). Four days later, on July
15, 2013, USAID’s Assistant General Counsel for Ethics and Administration suspended
Plaintiff’s email privileges, finding that her “numerous lengthy emails to very large numbers of
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individuals at [USAID]” violated the agency’s email policy, including using “technology
resources efficiently and productively” and refraining from “send[ing] email to harass or
intimidate others.” Dkt. 83-2 at 9–10 (SUMF ¶ 41) (internal quotation marks omitted); see also
83-9 at 5–6 (Peters Aff. ¶¶ 20, 25) (Ex. 7); Dkt. 83-42 at 2 (Ex. 40). Plaintiff added this action to
her EEO complaint. Dkt. 83-3 at 4 (Ex. 1).
At some point along the way, Plaintiff also submitted a worker’s compensation claim,
alleging “that she had suffered a workplace injury—specifically [that she] was under stress from
her supervisor.” Dkt. 83-8 at 6 (Kolmstetter Aff. ¶ 26) (Ex. 6); see also Dkt. 83-9 at 5 (Peters
Aff. ¶ 24) (Ex. 7). On July 15, 2013, the Office of Worker’s Compensation informed Plaintiff
“that she had not provided sufficient information to support her claims and that she had not
specified” her conditions or diagnosis, Dkt. 83-2 at 10 (SUMF ¶ 42); see also Dkt. 83-43 at 2–6
(Ex. 41), and it provided her with a questionnaire seeking more specific information about her
stress, Dkt. 83-43 at 2–6 (Ex. 41). During most of August 2013, Plaintiff took leave. Dkt. 83-2
at 10 (SUMF ¶ 44). Then, in October 2013, she “was placed on administrative leave, which was
extended several times while her worker[’s] compensation claims were investigated” and which
was extended indefinitely in December 2013. Id. at 11 (SUMF ¶¶ 48, 50).
In response to a letter from a union representative acting on Plaintiff’s behalf, the USAID
Office of Human Resources explained that “administrative leave [was] not a punitive action” but,
rather, merely constituted “time away from work with full pay without charge to leave.” Dkt.
83-48 at 2 (Ex. 46). The Office explained that it had taken this action because Plaintiff had
claimed “that she [felt] she had been harmed in the workplace, and [the Office had] a duty to . . .
protect” her. Id. The email identified the additional information that Plaintiff needed to provide
to move her claims forward. In particular, although USAID had “letters from various physicians
15
advising . . . that [Plaintiff’s] work with . . . Garber [had] created medical problems,” the Office
needed “the background medical information that support[ed] those medical conclusions.” Id.The Office offered, in the alternative, that Plaintiff could set up an appointment with a Federal
Occupational Health physician. Id. Plaintiff consented to the latter, and on March 14, 2014, she
learned that the results of her Federal Occupational Health evaluation “were ‘essentially
negative’ for physical conditions.” Dkt. 83-2 at 11 (SUMF ¶ 51) (quoting Dkt. 46 at 16 (2d Am.
Compl. ¶ 78)); see also Dkt. 83-4 at 40 (Ex. 2); Dkt. 83-8 at 5 (Kolmstetter Aff.) (Ex. 6). As a
next step, Plaintiff was required to appear for a Federal Occupational Health psychiatric
examination, Dkt. 83-4 at 40 (Ex. 2), but it is unclear from the record whether she ever appeared
for this examination, and, in any event, she withdrew her worker’s compensation claim in April
2014, Dkt. 83-56 at 3 (Ex. 54).
On April 15, 2014, the Department of State’s Office of Civil Rights completed its
investigation of Plaintiff’s first EEO complaint and found no direct evidence that she had
suffered an adverse employment action due to any unlawful animus. Dkt. 83-2 at 11–12 (SUMF
¶¶ 52–61); see generally Dkt. 83-4 (Ex. 2). The investigator noted that he was “hindered [in his
investigation] by a lack of detailed explanation of [Plaintiff’s] claims” and further noted that
Plaintiff “did not identify any comparators for any claim.” Dkt. 83-2 at 12 (SUMF ¶¶ 59–60).
On April 24, 2014, Garber emailed Plaintiff to welcome her back to work and to give her
new assignments, which Plaintiff, Garber, and another of Plaintiff’s supervisors, Patricia Rader,
had discussed the day before. Id. (SUMF ¶ 62); Dkt. 83-62 at 2 (Ex. 60); Dkt. 46 at 18 (2d Am.
Compl. ¶ 92). Garber’s email concluded, “Let’s try to make this work.” Dkt. 83-62 at 2 (Ex.
60). The détente was short-lived. On May 14, 2014, Plaintiff emailed Patricia Lamond, Acting
Director of OCRD, and Kaufmann with a reasonable accommodation request. Dkt. 83-2 at 5, 13
16
(SUMF ¶¶ 23, 64); Dkt. 5 at 58–76. The accommodation request rehashed the same accusations
against PPL and Plaintiff’s supervisors that she had previously raised, but also alleged that her
supervisors were retaliating against her for filing an EEO complaint. Dkt. 5 at 60–67. As an
accommodation, Plaintiff requested “[i]mmediate removal from the USAID PPL Bureau . . . to a
safe[,] non-threatening work environment.” Id. at 62 (emphasis omitted).
In support of her request, Plaintiff attached several letters from her doctors. One letter
from her cardiologist recommended that she be excused intermittently for the next two weeks for
medical testing. Id. at 70. All of the other letters were from Plaintiff’s psychiatrist, Dr. Pepper,
who asserted that Plaintiff had “developed Post Traumatic Stress disorder (PTSD),” “panic
attacks, severe anticipatory anxiety of going back to the same hostile environment, and
[d]epression,” as a result of a hostile work environment. Id. at 68, 71–73. Although Dr. Pepper
urged in the various letters—dating back to 2013—that USAID transfer Plaintiff either to a
different supervisor or a different office, he did not specify which management actions or work
conditions in Plaintiff’s then-current environment harmed her. Id. at 68–69, 71–73. Plaintiff
supplemented her request with further letters from her doctors in the following weeks. Dkt. 83-
22 at 37–42 (Ex. 20); Dkt. 83-2 at 14–15 (SUMF ¶¶ 68–72). In one of those letters, dated May
22, 2014, Dr. Pepper made a rare reference to specific conduct: that Garber was no longer
Plaintiff’s supervisor, and that her new supervisor, Rader, forced her to leave a note as to where
she was going each time that she left her office chair. Dkt. 87-5 at 1–2 (Ex. 5).
A representative from OCRD responded to Plaintiff on May 29, 2014 asking her to
complete and to send back an authorization form to allow her doctors to release medical
information to OCRD to assist the Office in its review of her claim. Dkt. 83-2 at 15
(SUMF ¶ 73); Dkt. 83-22 at 53 (Ex. 20). In reply, Plaintiff—copying others, including Dr.
17
Pepper—stated that her doctors’ letters had “provided all necessary medical information” and
that because the letters provided her physicians’ contact information, OCRD should “contact
them directly” for “further medical clarity.” Dkt. 83-22 at 51 (Ex. 20). “Therefore,” Plaintiff
concluded, “it is not necessary for me to sign the attachment.” Id.In the following weeks, Plaintiff repeatedly was out sick. Dkt. 83-2 at 16–17 (SUMF
¶¶ 75–78). It appears from the record that OCRD did not communicate with Plaintiff further
about her accommodation request. In addition to filing a request for accommodation, on June 6,
2014, Plaintiff filed a new EEO complaint. See Dkt. 83-57 at 2 (Ex. 55) (referring to a complaint
initiated on June 6, 2014); Dkt. 83-2 at 17 (SUMF ¶ 80) (referring to an informal complaint filed
on June 6, 2014).
On July 8, 2014, Plaintiff received a notice of proposed termination from her supervisor,
Patricia Rader. Dkt. 83-2 at 17 (SUMF ¶ 79). The notice identified three grounds for
termination: (1) failure to produce any work product since returning to work on April 21, 2014
and Plaintiff’s earlier failure to produce work product for the Russia History Project; (2) failure
to maintain a regular work schedule as a result of taking more than 200 hours of sick leave since
April 21, 2014, with no definite plan to resume work, notwithstanding abandonment of her
worker’s compensation claim and a resultant “lack of basis for believing [Plaintiff] could be
suffering harm in the workplace;” and (3) refusal to meet with Rader without a union
representative. Dkt. 83-56 at 2–4 (Ex. 54).
Following several deadline extensions and the filing of a further EEO complaint, Plaintiff
appealed her removal on August 12, 2014, Dkt. 83-2 at 17 (SUMF ¶¶ 80–81). On September 4,
2014, Assistant to the Administrator, PPL, Alex Thier, affirmed Plaintiff’s termination. Dkt. 46
at 25 (2d Am. Compl. ¶ 123); Dkt. 83-2 at 17 (SUMF ¶¶ 79, 81). However, due to a technical
18
glitch, Thier had not received Plaintiff’s appeal, an error that he did not realize until October 17,
2014. Dkt. 46 at 25 (2d Am. Compl. ¶ 123); Dkt. 83-2 at 17 (SUMF ¶¶ 79, 81). He accordingly
revoked his previous decision in order to consider Plaintiff’s appeal. Dkt. 83-2 at 17
(SUMF ¶ 81). Meanwhile, Plaintiff continued to lodge EEO complaints, filing one in August
and yet another in September. Id. (SUMF ¶¶ 82–83). OCRD found these complaints to be “like
or related to the [June 21, 2013] EEO complaint pending before the EEOC” and informed her
that she could move to amend her EEO complaint if she wanted to add the new claims to the
pending proceeding. Dkt. 83-2 at 17–18 (SUMF ¶ 84) (alteration in original) (quotation marks
omitted); see also Dkt. 83-59 at 2 (Ex. 57).
On November 25, 2014, Thier issued a decision on the notice of proposed termination,
concluding that Plaintiff should be terminated for each of the three grounds raised in the
proposal. Dkt. 83-2 at 18 (SUMF ¶ 85). With respect to her failure to complete work
assignments, Thier noted that, notwithstanding Plaintiff’s allegations about the inadequacy of her
work plan, she was still “expected to cooperate with [her] supervisor in accomplishing the work
of the office.” Dkt. 83-58 at 3 (Ex. 56). Thier found that, despite this obligation, Plaintiff had
produced no “evidence of having satisfactorily completed any work product in 2013 or 2014.”
Id. As to her failure to maintain a regular work schedule, Thier was unmoved by Plaintiff’s
assertions that she was forced to take time off because of a hostile work environment, noting that
she had “provided no information that indicates what specific actions in the workplace may have
caused [her] harm” or why she believed they led to her medical condition. Id. Finally, Thier
found that Plaintiff was insubordinate when she refused to meet with her supervisor, Rader,
without a union representative. Id. at 4–5. He explained that, unless Plaintiff reasonably
19
believed that she was in danger, she had an obligation “to obey first and grieve later.” Id. at 4.
Plaintiff’s termination took effect January 11, 2015. Dkt. 83-2 at 18 (SUMF ¶ 85).
On January 23, 2015, OCRD dismissed Plaintiff’s EEO complaints filed on June 6, 2014,
August 14, 2014, and September 16, 2014 on the ground that Plaintiff “already ha[d] an EEO
case pending hearing before the EEOC[,] which allege[d] harassment, retaliation, and failure to
accommodate,” and Plaintiff was free to “raise these [related] issues in the case that [was]
pending before the EEOC.” Dkt. 83-57 at 2–3 (Ex. 55). In February 2015, Plaintiff submitted a
fifth and sixth EEO complaint. Dkt. 83-2 at (SUMF ¶¶ 87–88). OCRD dismissed those
complaints as well, once again explaining that Plaintiff “already had an EEO case pending
hearing before the [EEOC], in which [she] allege[d] that the Agency has subjected [her] to
harassment and retaliation” and that, as a result, she could raise her additional allegations in that
pending case. Dkt. 83-60 at 2–3 (Ex. 58).
B. Procedural Background
Plaintiff commenced this action on May 8, 2015. Dkt. 1–8. In 2016, the Court dismissed
most of Plaintiff’s claims in Husain I, 2016 WL 4435177. Plaintiff (represented by counsel at
the time) filed a second amended complaint on June 9, 2017. Dkt. 46. In it, Plaintiff alleges that
USAID violated Title VII by taking discriminatory adverse employment actions against her to
create a hostile work environment (Count II). Id. at 28–29 (2d Am. Compl. ¶¶137–43). As a
result, Plaintiff claims she “has suffered and continues to suffer severe mental anguish and
emotional distress, including but not limited to depression, humiliation[], embarrassment, stress
and anxiety, loss of self-esteem and self-confidence, emotional pain and suffering, as well as
physical injury.” Id. at 29 (2d Am. Compl. ¶ 142). Plaintiff further alleges that the adverse
employment actions culminating in her termination constituted unlawful retaliation under Title
20
VII, intended to punish her for filing EEO complaints (Count I). Id. at 26–28 (2d Am. Compl.
¶¶ 128–36). Finally, Plaintiff claims that USAID denied her reasonable accommodation for her
disabilities and thereby violated the ADA and Rehabilitation Act (Count III). Id. at 29–30 (2d
Am. Compl. ¶¶ 144–49).
Proceedings in this case were delayed based on Plaintiff’s medical condition, the
appointment and withdrawal of counsel, unsuccessful settlement negotiations, and discovery. In
February 2020, USAID moved for summary judgment, Dkt. 83, and Plaintiff’s opposition was
finally docketed in October 2020, Dkt. 87-1.
II. LEGAL STANDARD
“[A] court’s adjudication of a motion for summary judgment under Rule 56 asks whether
the moving party is legally entitled to prevail based on the undisputed facts.” Duffy v. Dodaro,
No. 16-cv-1178, 2020 WL 1323225, at *5 (D.D.C. Mar. 21, 2020). 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); see also Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986). A fact is “material” if it is capable of affecting the outcome of the litigation
under governing law. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is
“‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248). In construing the facts, the Court
must draw “all justifiable inferences . . . in [the nonmovant’s] favor.” Anderson, 477 U.S. at
255; see also Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
If the moving party meets its burden, then the burden shifts, and the nonmovant must
“‘make a showing sufficient to establish the existence of an element essential to [her] case, and
21
on which [she] will bear the burden of proof at trial.’” Talavera, 638 F.3d at 308 (quoting
Holcomb, 433 F.3d at 895). “[A] party opposing a motion for summary judgment,” however,
“‘may not rest upon the mere allegations or denials of [her] pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial.’” Howard v. Locke, 729 F. Supp. 2d
85, 87 (D.D.C. 2010) (quoting Anderson, 477 U.S. at 248).
As the Court noted in this case at the motion-to-dismiss stage, “courts will often consider
all of a pro se plaintiff’s filings—and not merely her complaint”—to determine whether facts
remain in dispute. Husain I, 2016 WL 4435177, at *1 (citing Brown v. Whole Foods Mkt. Grp.,
Inc., 789 F.3d 146, 152 (D.C. Cir. 2015)). However, “a district court is not ‘obligated to sift
through hundreds of pages . . . to make [its] own analysis and determination of what may[] or
may not’ support the plaintiff’s claims.” Id. (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C.
Cir. 1988)). “[T]he Court may assume that facts identified by the moving party in its statement
of material facts are admitted, unless such a fact is controverted in the statement of genuine
issues filed in opposition to the motion.” L.Civ.R. 7(h); see also Dyer v. McCormick and
Schmick’s Seafood Rests., Inc., 264 F. Supp. 3d 208, 212 n.2 (D.D.C. 2017).
III. ANALYSIS
Plaintiff asserts three claims. First, she alleges that she was subjected to unlawful
discrimination based on her race, sex, national origin, and religion, in violation of Title VII. Dkt.
46 at 28–29 (2d Am. Compl. ¶¶ 138–43). Second, she alleges that USAID retaliated against her
for filing various EEO complaints, also in violation of Title VII. Id. at 26–29 (2d Am. Compl.
¶¶ 129–38). Finally, she alleges that USAID failed reasonably to accommodate “her disabilities,
including a breakdown in her physical health and severe emotional distress caused by her work
environment, despite repeated recommendations from [her] physicians that accommodation was
22
indicated and necessary.” Id. at 29–30 (2d Am. Compl. ¶¶ 145–49). As explained below, only
the last of these claims survives USAID’s motion for summary judgment.
A. Title VII Discrimination Claim
Plaintiff alleges that USAID discriminated against her based on her race, sex, national
origin, and religion when it subjected to her to “multiple acts of unfair, humiliating and
embarrassing treatment[,] culminating in her termination on false grounds for pretextual
reasons.” Id. at 28 (2d Am. Compl. ¶ 138). According to Plaintiff, USAID acted “to create a
hostile work environment” to induce Plaintiff to resign, “as other minority employees faced with
such treatment had done,” and, when that effort failed, the agency “terminated [her] on false
pretenses.” Id. (2d Am. Compl. ¶ 140).
Plaintiff’s disparate treatment claims fail because (1) many of the alleged wrongs that she
invokes, even if true, would not rise to the level of adverse employment action for purposes of
Title VII; (2) in other respects, she fails to connect the alleged wrongs to any protected status,
and not every workplace wrong is actionable under Title VII; and (3) she has failed to carry her
burden of offering evidence that would permit a reasonable jury to find that the non-
discriminatory rationales that the agency proffered for taking specific, adverse employment
actions were pretextual and that the real reason that the agency fired her was race-, sex-,
national-origin-, or religion-based animus. Finally, to the extent Plaintiff intends to raise a stand-
alone hostile work environment claim, that claim also fails, because it rests on the unsupported
premise that USAID took multiple adverse employment actions against her based on some
unlawful animus.
Title VII prohibits discrimination against employees based on race, color, religion, sex or
national origin. 42 U.S.C. § 2000e-2(a). “Absent direct evidence of discrimination, courts
23
assessing disparate treatment claims under [Title VII] employ the burden-shifting framework
from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Hylton v. Calabria, No. 17-cv-
2023, 2020 WL 6134673, at *4 (D.D.C. Oct. 19, 2020). Under this framework, a plaintiff must
establish a prima facie case of discrimination by showing that “‘(1) she is a member of a
protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action
gives rise to an inference of discrimination.’” Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir.
2002) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). If “the plaintiff establishes
a prima facie case, the burden shifts to the defendant to produce evidence of ‘a legitimate,
nondiscriminatory [or nonretaliatory] reason’ for its actions.” Kersey v. Wash. Metro. Area
Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009) (alteration in original) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)).
The Court begins with the acts that both parties agree constitute adverse employment
actions: (1) Plaintiff’s suspension following her unapproved appearance at the University of
Maryland; (2) suspension of her email privileges; and (3) termination. See Dkt. 83-1 at 13; Dkt.
46 at 12–13, 26 (2d Am. Compl. ¶¶ 59, 62–63, 124) (referencing email suspension, work
suspension, and termination, respectively). USAID offers nondiscriminatory reasons for each
action. Starting with Plaintiff’s suspension for appearing at the University of Maryland event:
Garber emailed Plaintiff on May 1, 2013, explaining that he “ha[d] been made aware that [she
was] advertised as a speaker at a May 6 event at the University of Maryland School of Social
Work talking about jobs in the US government.” Dkt. 83-19 at 2 (Ex. 17). Garber stressed that
Plaintiff had not sought authorization to appear at the event and that, “given both the subject
matter and the time of the presentation, formal approval from [her] supervisor (and LPA) [was]
required before accepting such invitations.” Id. Yet, despite this admonition, Plaintiff appeared
24
at the event without permission and spoke about applying for federal positions. Dkt. 83-20 at 2
(Ex. 18); see also Dkt. 27 at 2 (Ex. 25). Indeed, rather than seek permission, Plaintiff emailed
Reichle to request permission to telework that day (and for much of the month of May) “for
medical reasons.” Dkt. 83-21 at 2 (Ex. 19). Plaintiff ultimately received a two-day suspension
in a memorandum citing this incident and Plaintiff’s response to Garber as the reasons for
suspension. Dkt. 83-39 at 4 (Ex. 37).
USAID has also proffered a legitimate, nondiscriminatory reason for suspending
Plaintiff’s email privileges. In a detailed memorandum, the agency’s designated ethics official,
James Peters, explained that Plaintiff’s email practices had violated the Executive Branch
Standards of Conduct, which require federal employees “‘to protect and conserve Government
property’” and which prohibits the “‘use of such property . . . for other than authorized
purposes.’” Dkt. 83-42 at 2 (Ex. 40) (citing 5 C.F.R. § 2635.704(a)). Peters further explained
that “[s]ending out mass email to a broad cross section of Agency personnel, containing highly-
charged personal allegations[,] is not consistent with authorized purposes for the use of
Government property” and that you “may not bombard others with multiple mailings, known as
email ‘bombing,’ and . . . may not send e-mail to harass or intimidate others.” Id. As an
example of Plaintiff’s email “bombing,” USAID points to a July 11, 2013 email that Plaintiff
sent to her supervisor, Lawrence Garber, in which she criticized his management style, accused
him of “set[ting] [her] u[p] for performance failure and defamation of [her] competency,” and
claimed that he “never provided [her with] any guidance.” Dkt. 83-41 at 3–4 (Ex. 39); see also
Dkt. 83-2 at 9–10 (SUMF ¶¶ 40–41). Plaintiff copied more than 75 other USAID employees on
that email for no apparent reason. Dkt. 83-41 at 3 (Ex. 39).
25
Finally, USAID provided a detailed, nondiscriminatory rationale for its decision to
terminate Plaintiff’s employment. Consistent with the agency’s notice of proposed termination,
Dkt. 83-56 (Ex. 54), and after providing Plaintiff with an opportunity to respond, USAID’s final
decision outlined three grounds for her removal from employment, Dkt. 83-58 (Ex. 56). First,
the deciding official explained that Plaintiff “produced no work product from April 21, 2014
until July 8, 2014” and that the work product that she produced for the Russia History project in
2013 “‘did not address the requirements of the Bureau for Policy, Planning, and Learning[] or
the requirements of the Europe and Eurasia Bureau.”’ Id. at 2 (Ex. 56). Second, he sustained the
charge that Plaintiff failed to maintain a regular work schedule, concluding (1) that she had failed
to support her contention that her repeated absences resulted from a hostile work environment
and (2) that she refused to discuss a predictable work schedule, despite a letter from her
psychiatrist opining that her “sick leave had a definitive end date.” Id. at 3–4 (Ex. 56). Finally,
the deciding official concluded that Plaintiff was insubordinate when she refused to meet with
her supervisor, Patricia Rader, to discuss her work. Id. at 4 (Ex. 56). Although Plaintiff
explained that she merely refused to attend the meeting without her union representative, the
deciding official determined (1) that she was “not entitled to leave the meeting without re-
scheduling,” as her supervisor requested, and (2) that Plaintiff made no effort to reschedule in the
month that elapsed between the aborted meeting and the agency’s notice of proposed
termination. Id. And, to the extent Plaintiff maintained that she was unable to meet with her
supervisor because the “environment” was “unsafe,” Plaintiff failed to offer any “evidence that
there was any real threat to [her] safety.” Id.Once an employer proffers “a legitimate, non-discriminatory reason for” taking an
adverse employment action, “the district court need not—and should not—decide whether the
26
plaintiff actually made out a prima facie case under” the McDonnell Douglas framework. Brady
v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). “Rather, in considering an
employer’s motion for summary judgment . . . in those circumstances, the district court must
resolve one central question: Has the employee produced sufficient evidence for a reasonable
jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and
that the employer intentionally discriminated against the employee on the basis of race, color,
religion, sex, or national origin?” Id. To be sure, the leap from the McDonnell Douglas
framework to the questions of pretext and discriminatory purpose is not automatic; to shift the
burden back to the plaintiff, the employer must offer competent, credible evidence sufficient to
permit a reasonable factfinder to conclude that the employer acted for legitimate,
nondiscriminatory reasons that are “‘clear and reasonably specific.’” Figueroa v. Pompeo, 923
F.3d 1078, 1087–88 (D.C. Cir. 2019) (quoting Segar v. Smith, 738 F.2d 1249, 1269 n.13 (D.C.
Cir. 1984)). But, once the employer does so, the issue for the Court to decide shifts to the
ultimate question whether the Plaintiff has offered evidence that would permit a reasonable jury
to find that the employer’s asserted nondiscriminatory rationale is pretextual and that, in fact, the
employer acted based on discriminatory animus.
Here, USAID’s asserted rationales for each of the three adverse employment actions are
supported by competent, credible evidence that is clear and specific. The burden, accordingly, is
on Plaintiff to offer evidence that would permit a reasonable jury to find that those rationales are
pretextual and that, in fact, USAID penalized Plaintiff because of her race, sex, national origin,
or religion. She offers no such evidence. At most, Plaintiff offers evidence that she, and her
union representative, disagreed with some of USAID’s justifications for various actions or
requirements. But it is not the Court’s role to “sit as a ‘super-personnel department’ [to]
27
reexamine” whether the discipline that USAID imposed was warranted in light of Plaintiff’s
conduct. Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016) (quoting
Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999)). Where, as here, the plaintiff fails to
offer any evidence that the defendant’s asserted rationale was pretextual (and not simply
wrongheaded) and that the defendant’s actual rationale was discriminatory animus, the Court
must grant summary judgment in favor of the defendant.
Rather than address this requirement, Plaintiff responds to USAID’s asserted rationales
with conclusory statements, vague references to the vast number of documents that she has filed,
and epithets directed at opposing counsel. See generally Dkt. 87-1. Beyond these unhelpful
assertions, Plaintiff devotes the bulk of her opposition to the contention that USAID is estopped
from moving for summary judgment because it did not challenge the claims now at issue at the
motion-to-dismiss stage. Id. at 6. That argument is wrong. Although Plaintiff is correct that
USAID did not move to dismiss all of Plaintiff’s claims and that the unchallenged claims
survived, Husain I, 2016 WL 4435177, at *8, that result did not constitute a finding by the Court
that Plaintiff had carried her burden as to those claims. Moreover, and more generally, a
defendant does not lose the right to move for summary judgment on a claim merely because it
did not move to dismiss that claim.
Nor is the Court persuaded that any of the other employment actions mentioned in
Plaintiff’s amended complaint suffices to establish a triable issue of fact. Among other things,
she alleges that her supervisors’ purported discriminatory animus toward her infected (1) her
2012 performance evaluation, Dkt. 46 at 7 (2d Am. Compl. ¶ 33); (2) their denial of her requests
for additional training opportunities, id. (2d Am. Compl. ¶ 34) (3) the conditions that they
imposed on her teleworking agreement, id. at 8 (2d Am. Compl.¶ 37); and (4) their delays in
28
completing her evaluation and work plans, id. at 3 (2d Am. Compl. ¶ 9). Each of these claims
fails because Plaintiff has failed to offer any evidence that would permit a reasonable jury to find
that the actions affected the terms and conditions of her employment to a degree sufficient to
support a disparate treatment claim. See Burlington N. & Santa Fe Ry. Co v. White, 548 U.S. 53,
60 (2006) (“[A] plaintiff must show an ‘adverse employment action,’ which [is] defined as a
‘materially adverse change in the terms and conditions’ of employment.” (citation omitted)).
But, even if Plaintiff could clear that threshold requirement, her disparate treatment claim fails
because she offers no evidence that any of these actions was taken because of her protected
status. The closest Plaintiff comes even to gesturing at a prima facie case is her allegation that
“other non-minority employees” received access to training and career opportunities while she
did not. Dkt. 46 at 3 (2d Am. Compl. ¶ 9). But Plaintiff offers no evidence to support this
contention, let alone evidence to establish that these non-minority employees were similarly
situated to her.
Finally, to the extent Plaintiff intends to bring a separate claim alleging a hostile work
environment, that claim fails as well. To withstand USAID’s motion for summary judgment,
Plaintiff must offer evidence that would allow a reasonable jury to find that USAID “subjected
[her] to ‘discriminatory intimidation, ridicule, and insult’ that [was] ‘sufficiently severe or
pervasive to alter the conditions of [her] employment and [to] create an abusive working
environment.’” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). This is not “a mathematically precise test,” leaving
courts to consider “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.” Harris, 510 U.S. at 22–23. The standard is
29
meant to be “demanding” enough “to ensure that Title VII does not become a general civility
code” or create liability for “the ordinary tribulations of the workplace.” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks omitted). The plaintiff,
moreover, must show the environment was both “subjectively” and “objectively . . . offensive.”
Id. at 787.
Plaintiff’s hostile work environment claim fails for at least two reasons. First and
foremost, she offers no evidence that would permit a reasonable jury to find that the hostile work
environment that she alleges “was the result of discrimination based on a protected status.”
Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107 (D.D.C. 2005). It is not enough for a plaintiff to
show that her employer was “‘harsh, unjust, and rude,’” id. (quoting Alfano v. Costello, 294 F.3d
365, 377 (2d Cir. 2002)); rather, the plaintiff must offer some evidence that the hostility was the
product of discriminatory animus. Because Plaintiff has adduced no such evidence, her claim
fails. Second, Plaintiff offers no evidence that her employer engaged in any conduct that was
unduly harsh, much less evidence of the type of pervasive harassment that is necessary to recover
on a hostile work environment claim. At least in the present context, requiring 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 workplans does not come close to satisfying the “demanding”
standard for a hostile work environment claim. Faragher, 524 U.S. at 787.
The Court, accordingly, concludes that USAID is entitled to summary judgment on
Plaintiff’s disparate treatment claims (Count II).
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B. Title VII Retaliation Claim
For similar reasons, the Court is also persuaded that USAID is entitled to prevail on
Plaintiff’s Title VII retaliation claims. Plaintiff alleges that the agency took various adverse
actions against her because she engaged in protected EEO activity. She alleges that these
retaliatory actions included her suspension and termination, Dkt. 46 at 27 (2d Am. Comp.
¶¶ 131, 133), but also a slew of other actions including “requiring Plaintiff to submit to daily
reporting requirements[;] cutting Plaintiff off from USAID email access and IT systems[;]
requiring Plaintiff to report for duty when unable to work because of lack of access to email and
IT systems thus subjecting [her] to ridicule, embarrassment and humiliation in front of co-
employees[;] failing to provide Plaintiff with a timely prepared work plan[;] placing Plaintiff on
forced administrative leave[;] and refusing to accommodate Plaintiff’s well documented medical
and emotional need for assignment to a different supervisor.” Id. (2d Am. Compl. ¶ 132).
According to Plaintiff, USAID’s pattern of retaliatory actions “began within five days after
Plaintiff filed her first EEO [c]omplaint.” Id. at 26 (2d Am. Compl. ¶ 129).
An employer may not discriminate against an employee because she “has opposed any
practice made an unlawful employment practice” by Title VII or “has made a charge” under Title
VII. 42 U.S.C. § 2000e-3(a); see also Burlington, 548 U.S. at 62. “To establish a prima facie
case of unlawful 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.’” Singletary v. District of Columbia, 351 F.3d 519, 524
(D.C. Cir. 2003) (quoting Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 651 (D.C.
Cir. 2003)). In the context of a retaliation claim, an action is “materially adverse” if it could
“dissuade[] a reasonable worker from making or supporting a charge of discrimination.”
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Burlington, 548 U.S. at 68 (internal quotation marks omitted). If the plaintiff establishes each of
the elements of her case, then the burden shifts to the defendant to offer a legitimate,
nonretaliatory reason for its actions. Singletary, 351 F.3d at 524 n.5. If the defendant does so,
“‘the burden-shifting framework disappears’ and the question becomes ‘whether a reasonable
jury could infer . . . retaliation from all the evidence.’” Durant v. District of Columbia, 875 F.3d
685, 697 (quoting Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)). “In rebutting the
proffered explanation, the plaintiff may show ‘that the legitimate reasons offered by the
defendant were not its true reasons[] but were pretext for [retaliation].’” Id. (second alteration in
original) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)); see also
Taylor v. Solis, 571 F.3d 1313, 1320 n.4 (D.C. Cir. 2009).
Starting with the first element, “[i]t is undisputed that [Plaintiff] engaged in protect[ed]
EEO activity starting in May 2013[] and continuing through her termination in January 2015.”
Dkt. 83-1 at 15. The parties disagree, however, about whether a reasonable jury could find that
the second and third elements of a retaliation claim are satisfied. In USAID’s view, many—but
not all—of the alleged retaliatory actions do not amount to adverse employment actions for
present purposes. And, beyond that, USAID argues that Plaintiff has failed to identify evidence
that would permit a reasonable jury to find that the challenged actions were, in fact, retaliatory.
The Court agrees that some of the allegedly retaliatory actions at issue, even if true,
would not rise to the level of adverse employment actions for purposes of a Title VII retaliation
claim. See Singletary, 351 F.3d at 524. Requiring an employee to obtain advance authorization
before attending a non-government event during the workday to discuss government hiring or
requiring an employee who is teleworking to provide a daily account of her activities is unlikely
to “dissuade[] a reasonable worker from making or supporting a charge of discrimination.”
32
Burlington, 548 U.S. at 68 (internal quotation marks omitted). Similarly, Plaintiff claims that
she was not timely provided with a work plan, Dkt. 46 at 27 (2d Am. Compl. ¶ 132), but even
setting aside Plaintiff’s role in contributing to her work plan’s delay, the Court is unpersuaded
that an untimely work plan (at least in the present context) constitutes an adverse action
sufficient to support a retaliation claim. The Court need not premise its decision on this ground
alone, however, because, as with her disparate treatment claims, Plaintiff has failed to offer any
evidence connecting the action to her protected status or has failed to rebut USAID’s proffered,
nondiscriminatory rationale for the challenged action.
Most fundamentally, Plaintiff offers no evidence that would permit a reasonable jury to
find that the various slights and adverse actions that she identifies bore any causal connection to
her protected EEO activity. The only argument that she makes even attempting to connect her
EEO activity with USAID’s allegedly retaliatory action is temporal proximity. To be sure, “[a]
plaintiff may satisfy th[e] third element of a prima facie case by showing ‘the employer had
knowledge of the employee’s protected activity, and . . . the adverse personnel action took place
shortly after that activity.’” Holcomb, 433 F.3d at 903 (quoting Mitchell v. Baldrige, 759 F.2d
80, 86 (D.C. Cir. 1985)). But this principle comes with two important provisos. First, although
“[t]emporal proximity” can indeed support an inference of causation” for purposes of
establishing a prima facie case of retaliation, Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir.
2017), “once a defendant proffers a legitimate reason for its adverse action, temporal proximity
standing alone is not sufficient to ‘defeat the proffer and [to] support a finding of retaliation,’”
Thomas v. District of Columbia, 227 F. Supp. 3d 88, 109 (D.D.C. 2016) (quoting Woodruff, 482
F.3d at 530) (alteration in original). “At this stage, permitting evidence of temporal proximity to
rebut the defendant’s showing would be tantamount to ‘grant[ing] employees a period of
33
immunity, during which no act, however egregious, would support summary judgment for the
employer in a subsequent retaliation claim.’” Id. at 109–10 (quoting same) (alteration in
original). Second, even at the prima facie stage, to satisfy the third element, “mere temporal
proximity between an employer’s knowledge of protected activity and an adverse employment
action . . . must be very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)
(internal quotation marks omitted).
Here, USAID has proffered evidence of legitimate, non-retaliatory justifications for most
of the actions that Plaintiff cites as retaliatory. As explained above, USAID has proffered
credible, legitimate reasons supported by competent evidence for suspending Plaintiff for two
days, for suspending her email privileges, and for eventually terminating her employment. The
same is true with respect to most of the other actions Plaintiff relies upon in support of her
retaliation claim. Assuming for the sake of argument that Garber’s request on May 1, 2013 for
daily emailed work updates constitutes an “adverse personnel action,” Singletary, 351 F.3d at
524, for example, Garber explained in an affidavit why he requested that Plaintiff, but not other
employees, provide these updates: “No one else was using [telework] at the time in the same
manner as [Plaintiff],” and, in any event, “when other employees [teleworked], [Garber] was
reasonably confident that [he] knew what they were doing.” Dkt. 83-5 at 11 (Ex. 3); see also
Dkt. 83-2 at 3 (SUMF ¶ 15). The explanation is credible, as it followed on the heels of
Plaintiff’s disclosing that she had made no meaningful progress on her assigned work, the Russia
History Project, for six weeks. Dkt. 83-2 at 2 (SUMF ¶ 11).
Similarly, USAID has explained why it placed Plaintiff on administrative leave during
the investigation of her Worker’s Compensation claim, Dkt. 83-2 at 11 (SUMF ¶¶ 48, 50): her
paid “administrative leave [was] not a punitive action” but, rather, part of the Office’s “duty to .
34
. . protect” Plaintiff while it investigated the allegedly dangerous office. Dkt. 83-48 at 2 (Ex.
46). Finally, even if USAID might (at least arguably) have done more to gather information in
support of Plaintiff’s request for a medical accommodation, the agency has offered a credible,
nonretaliatory reason for failing to act on her request: the agency asked that Plaintiff fill out a
form authorizing USAID to gather additional information from her doctors, and she never
provided the requested form. Dkt. 83-2 at 15–16 (SUMF ¶¶ 73–74). Failing to pursue Plaintiff’s
request for an accommodation further after she failed to respond might (or might not) have been
a mistake, but there is no reason to believe that USAID’s stated rationale is pretextual and that
the agency, in fact, was motivated by retaliatory animus.
The one remaining action that Plaintiff cites as retaliatory does not constitute an adverse
employment action, at least when viewed in light of the evidence discussed above. In particular,
she alleges that she was “required . . . to report for duty when unable to work because of lack of
access to email and IT systems [and] thus subject[ed] . . . to ridicule, embarrassment and
humiliation in front of co-employees.” Dkt. 46 at 27 (2d Am. Compl. ¶ 132). But, as explained
above, the agency has provided a credible, nonretaliatory rationale for suspending Plaintiff’s
email privileges. It is unsurprising that she was nonetheless still expected to report to work.
Any subjective embarrassment that she may have experienced by this requirement, independent
of the suspension of the email privileges, does not rise to the level of adverse action sufficient to
support a retaliation claim. The baseline expectation is that those who are employed by the
federal government will come to work, even when their capacity to accomplish much is limited.
Thus, for any action that is plausibly adverse, USAID has provided a “legitimate[,]
nonretaliatory reason for its action[s],” shifting the burden to Plaintiff to show that a reasonable
jury could find that the asserted rationale was pretextual and that, in truth, the action was
35
retaliatory. Singletary, 351 F.3d at 524 n.5. Plaintiff asserts that she “strongly disagree[s] with
the false narrative manufactured by” USAID, Dkt. 87-1 at 7, and that their justifications “are
demonstrably false and pretextual,” Dkt. 46 at 27 (2d Am. Compl. ¶ 133), but she fails to
identify any evidence that supports that conclusory contention.
Finally, temporal proximity standing alone cannot rebut USAID’s legitimate
justifications for taking those challenged actions. Although it is true that many of the adverse
actions occurred shortly after Plaintiff engaged in protected activity, during the same time
period, Plaintiff failed to work on the Russia Project, refused to send daily email updates, failed
to seek approval for speaking engagements, failed to observe rules of conduct governing email,
refused to acknowledge Garber as her supervisor, refused to develop a predictable work
schedule, and refused to meet with Rader without a union representative. An employee cannot
insulate herself from legitimate, adverse action by continuously engaging in protected activity.
See Kilby-Robb v. Devos, 246 F. Supp. 3d 182, 200 (D.D.C. 2017) (noting that Title VII does
“not give [a plaintiff] an automatic right to go to a jury on any claim of retaliation” merely
because she is “involved, at one level or another, in protected EEO activity for most—if not all—
of the time” at issue). Accordingly, even if some of the adverse actions occurred close in time to
that activity, Plaintiff must provide more to rebut credible evidence that USAID acted for
legitimate, nonretaliatory reasons. See Woodruff, 482 F.3d at 530.
The Court, accordingly, concludes that USAID is entitled to summary judgment on
Plaintiff’s retaliation claim (Count I).
C. ADA/Rehabilitation Act Claim
Finally, Plaintiff claims that USAID violated the ADA and the Rehabilitation Act “by
denying her reasonable accommodation for her disabilities, including a breakdown in her
36
physical health and severe emotional distress.”2 Dkt. 46 at 29 (2d Am. Compl. ¶ 145). Because
“the Rehabilitation Act provides the exclusive judicial remedy for federal employees who allege
that they are victims of workplace discrimination based on disabilities,” Husain I, 2016 WL
4435177, at *4 (citing Richardson v. Yellen, 167 F. Supp. 3d 105, 118 (D.D.C. 2016)), the Court
will dismiss Plaintiff’s ADA claim and will consider Plaintiff’s claim under the Rehabilitation
Act alone.
To prevail on a failure-to-accommodate claim, a plaintiff “must produce sufficient
evidence that (1) she was a qualified individual with a disability, (2) [her employer] had notice of
her disability[,] and (3) [her employer] denied her request for a reasonable accommodation.”
Ward v. McDonald, 762 F.3d 24, 31 (D.C. Cir. 2014); see also Woodruff, 482 F.3d at 527;
Bonnette v. Shinseki, 907 F. Supp. 2d 54, 77 (D.D.C. 2012). “‘[A]n employer is not required to
provide an employee [the] accommodation [she] requests or prefers[;] the employer need only
provide some reasonable accommodation.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C.
Cir. 1998) (internal quotation marks omitted).
Plaintiff faults USAID for failing to accommodate her request for “a change in
supervisors or reassignment to a different position with different supervisors.” Dkt. 46 at 29 (2d
Am. Compl. ¶ 146). USAID responds by arguing that it cannot be faulted for failing to
accommodate Plaintiff’s asserted disability because, when asked, she failed to provide the
agency with a medical release allowing it to make follow-up inquiries with her doctors. Dkt. 83-
2
There is some evidence before the Court suggesting that Plaintiff might have developed a brain
tumor while at USAID. Dkt. 12; Dkt. 87-5 at 10–12, 15 (Ex. 5). This evidence does not,
however, have a direct bearing on Plaintiff’s Rehabilitation Act claim because there is no reason
to believe that USAID (or, indeed, Plaintiff) was aware of this significant medical condition at
the time she sought an accommodation. This new evidence might, however, bolster Plaintiff’s
contention that she was suffering from an actual disability, even if undiagnosed at the time.
37
1 at 26–29. In USAID’s view, that omission amounts to an abandonment of her request of an
accommodation or a failure to engage in the interactive process required by the Rehabilitation
Act. Id. at 29.
“Once [an] employer knows of [an employee’s] disability and the employee’s desire for
accommodations, ‘it makes sense to place the burden on the employer to request additional
information that the employer believes it needs.’” Woodruff v. LaHood, 777 F. Supp. 2d 33, 41
(D.D.C. 2011) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315 (3d Cir. 1999)).
Because “[f]ew disabilities are amenable to one-size-fits-all accommodations[,] . . . an employer
needs information about the nature of the individual’s disability and the desired
accommodation—information typically possessed only by the individual or her physician.”
Ward, 762 F.3d at 31. Notwithstanding this burden, however, employers do not bear sole
responsibility for gathering information and arriving at a reasonable accommodation. Rather, the
Rehabilitation Act 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.’” Id. at 32 (quoting EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir.
2005)); see also Duffy v. Dodaro, No. 16-cv-1178, 2020 WL 1323225, at *13 (D.D.C. Mar. 21,
2020).
The governing regulations also reflect this understanding:
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); see also Ward, 762 F.3d at 32; Mogenhan v. Napolitano, 613 F.3d
1162, 1167 & n.4 (D.C. Cir. 2010). Notably, “‘neither party should be able to cause a
38
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) (alteration in original). When the interactive process
fails, “courts should attempt to isolate the cause of the breakdown and then assign
responsibility.” Id. (quoting same).
USAID maintains that “when asked to complete medical releases so that [USAID’s] EEO
staff could make follow-up inquiries regarding her alleged disabilities and their connection with
her work duties, Plaintiff either terminated the EEO process or did not comply.” Dkt. 83-1 at
28–29. The Court agrees that Plaintiff terminated the interactive process with respect to her
2013 request for telework. When OCRD staff contacted Plaintiff with specific requests for more
information about her request for medical accommodation in May 2013, Plaintiff did not provide
the requested information and, instead, responded: “For OCRD record keeping purposes, I did
not request . . . reasonable accommodation.” Dkt. 83-25 at 2 (Ex. 23); see also Dkt. 83-2 at 5
(SUMF ¶ 22). When, as here, an employee “walk[s] away” from a seemingly good-faith effort
by the employer to gain more information about a request for accommodation, a plaintiff causes
the interactive process to break down and cannot prevail on a failure-to-accommodate claim
against the employer. Ward, 762 F.3d at 33–35.
The Court is unpersuaded, however, that Plaintiff indisputably terminated the interactive
process with respect to her second request for a reasonable accommodation in 2014. On April
28, 2014, OCRD staff notified Plaintiff of receipt of her request for reasonable accommodation.
Dkt. 83-2 at 13 (SUMF ¶ 63). Over the following month, Plaintiff continued to email OCRD
staff and others with her reasonable accommodation application and with letters from her
doctors. Id. at 13–15 (SUMF ¶¶ 64–72). On May 29, 2014, a member of OCRD emailed
Plaintiff, stating:
39
We may need to discuss or seek clarification from your doctors on the information
provided. As such, we ask [that] you complete and send back the attached
[Authorization] form.
Dkt. 83-22 at 53 (Ex. 20). On June 2, 2014, Plaintiff responded, copying Dr. Pepper and
explaining:
I am including Dr. F.J. Pepper, my [p]sychiatrist, in this communication as I give
Dr. Pepper[] my permission to respond to any/all medical clarity [inquiries] that
USAID/OCRD is now requiring. Therefore, it is not necessary for me to sign the
attachment.
Id. at 51 (Ex. 20). From the record, it is not clear whether anyone from OCRD ever contacted
Plaintiff again. It is clear, however, that Plaintiff continued to contact OCRD, as evidenced by
emails inquiring into the status of her application sent on June 16, 2014 and June 26, 2014. Id. at
48–50 (Ex. 20).
Plaintiff’s June 2, 2014 email does not amount to the type of unambiguous termination or
abandonment of the interactive process that courts have found fatal to reasonable
accommodation claims. Plaintiff did not, for example, resign from her job in response to
requests for more information, Ward, 762 F.3d at 33; Stewart v. St. Elizabeths Hosp., 589 F.3d
1305, 1308–09 (D.C. Cir. 2010), nor did she unambiguously refuse to provide more information,
see Templeton v. Neodata Servs., Inc., 162 F.3d 617, 618 (10th Cir. 1998); Beck v. Univ. of Wis.
Bd. of Regents, 75 F.3d 1130, 1136–37 (7th Cir. 1996). It may be that Plaintiff’s response was
legally insufficient to release her medical information or that it was inadequate because she only
copied one of her doctors. But the existing record does not reveal any attempt by USAID to
explain to Plaintiff the inadequacy of her response or to clarify the effect of that response on her
accommodation request. To the contrary, Plaintiff’s subsequent emails suggest that she believed
her accommodation request was very much alive. If USAID did explain to Plaintiff the
inadequacy of her response, then Plaintiff’s ongoing refusal to sign the appropriate authorization
40
form might have constituted a refusal to complete the interactive process. But as the record
stands, USAID has failed to carry its burden of showing that “[n]o reasonable jury could find
that” Plaintiff was willing to and did continue participating in the interactive process required to
pursue a reasonable accommodation. Ward, 762 F.3d at 31.
Finally, USAID also asserts—albeit in passing—that Plaintiff has not met her burden of
showing “that she was denied a reasonable accommodation.” Dkt. 83-1 at 28; see also Dkt. 86 at
9. It may be that there is something to this argument. It is far from clear, for example, that the
accommodations that Plaintiff sought (including a new supervisor or transfer to a different
office) would have helped her perform the essential functions of her job, and, as the Supreme
Court has observed, “[a]n ineffective ‘modification’ or ‘adjustment’” is not an accommodation of
“a disabled individual’s limitations.” US Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002); see
also 29 C.F.R. § 1630.2(o)(ii) (“[R]easonable accommodations” are “[m]odifications or
adjustments to the work environment, or to the manner or circumstances under which the
position held . . . is customarily performed, that enable an individual with a disability who is
qualified to perform the essential functions of that position.” (emphasis added)). Plaintiff, after
all, had difficulty functioning under the direction of a variety of supervisors. See, e.g., Dkt. 83-
10 at 5 (Lamond Aff.) (Ex. 8) (mentioning several of Plaintiff’s complaints across different
offices and supervisors). That question, however, is not properly before the Court because
USAID never developed its argument, and a single, conclusory clause in a single sentence is
insufficient to carry a movant’s summary judgment burden of showing “that there is no genuine
dispute as to any material fact and [that it] is entitled to judgment as a matter of law,” Fed. R.
Civ. P. 56(a). A plaintiff cannot be expected to refute an argument that the defendant never
41
made—or one that the movant made with such brevity that the substance of the argument is not
apparent.
The Court, accordingly, concludes that USAID is entitled to prevail on Plaintiff’s ADA
claim but that it is not entitled to summary judgment on Plaintiff’s Rehabilitation Act claim
(Count III).
CONCLUSION
For the reasons explained above, the Court GRANTS USAID’s motion for summary
judgment as to Counts I and II, GRANTS USAID’s motion with respect to the ADA claim
contained in Count III, and DENIES USAID’s motion with respect to Plaintiff’s Rehabilitation
Act claim contained in Count III.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: February 19, 2021
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