Fierce v. Burwell, 101 F. Supp. 3d 543

Heather Fierce, a Schedule A hire at DHHS/NIH (hired Sept. 2010), has clinical depression and alleged learning disabilities; supervised by Tabitha Hairston.
Relationship with Hairston soured beginning in 2011; Hairston criticized Fierce’s performance and required weekly work accounting; contemporaneous documents show multiple performance issues (leave, late travel vouchers, unauthorized charge card use, hostile emails, missed deadlines).
Fierce filed informal EEO complaints in May 2012, two mediations failed, and she filed a formal EEO complaint in August 2012; terminated at the end of her probationary period effective Sept. 22, 2012.
Fierce asserted claims for failure to accommodate, hostile work environment, disparate treatment, retaliation (disability discrimination/Rehabilitation Act), and tort claims for emotional distress; defendants moved for summary judgment.
Court treated the motion as one for summary judgment, found defendants produced extensive contemporaneous non-discriminatory evidence of performance problems, and Fierce failed to produce sufficient evidence linking adverse actions to her disability.
Court granted summary judgment for defendants on all claims; FTCA tort claims dismissed for failure to exhaust administrative remedies; Rule 56(d) discovery request denied for lack of affidavit and speculative basis for discovery.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to accommodate (telework)	Fierce requested telework one day/week as a reasonable accommodation for depression	Hairston was unaware of specific disability until June 4, 2012; telework was not shown to be necessary to perform essential job functions	Denied — no evidence telework was required to perform essential functions; many requests predate notice of disability
Hostile work environment (disability-based)	Hairston’s hostile conduct created an abusive atmosphere tied to Fierce’s disability	Hairston’s conduct was directed at many employees; no evidence hostility was because of disability	Denied — harassment not shown to be based on disability and was not limited to Fierce
Disparate treatment (adverse actions)	Fierce points to denial of award, counseling memo, exclusion from meetings/training	Defendants cite legitimate nondiscriminatory reasons: documented performance problems	Denied — the challenged actions were not adverse as a matter of law or were supported by legitimate, nonpretextual reasons
Retaliation (after EEO activity)	Fierce claims termination was retaliatory for protected EEO activity	Defendants point to contemporaneous documentation of performance issues as legitimate reasons	Denied — no showing of pretext or causal link sufficient to survive summary judgment

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
Anderson v. Liberty Lobby, 477 U.S. 242 (evidence standard for summary judgment)
Wilson v. Dollar General Corp., 717 F.3d 337 (elements of failure-to-accommodate claim)
Raytheon Co. v. Hernandez, 540 U.S. 44 (applying Title VII burden-shifting to disability claims)
EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (retaliation prima facie framework)
Thompson Everett, Inc. v. Nat’l Cable Adv., 57 F.3d 1317 (probative evidence requirement opposing summary judgment)
Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514 (nonmovant’s burden under Rule 56)
Davis v. Lockheed Martin Operations Support, Inc., 84 F. Supp. 2d 707 (telework/accommodation principles)
Felty v. Graves-Humphreys Co., 818 F.2d 1126 (court’s duty to exclude factually unsupported claims)