Orma BUIE, Plaintiff, v. Jacqueline A. BERRIEN, et al., Defendants.
Civil Action No. 13-1181 (ABJ)
United States District Court, District of Columbia.
Signed March 27, 2015
102 F. Supp. 3d 161
AMY BERMAN JACKSON, United States District Judge
IV. CONCLUSION
For the reasons set forth above, the Court will grant Unitronics’ motion for contempt, as well as their motions to dismiss, grant IMI‘s motion to dismiss, award attorney fees to Unitronics and IMI, dismiss all other Individual Defendants, and deny all of Mr. Gharb‘s motions as moot. Unitronics and IMI shall each file a petition for reasonable attorneys’ fees and costs incurred in responding to Mr. Gharb, and Mr. Gharb shall have the opportunity to respond to these petitions. A memorializing Order accompanies this Memorandum Opinion.
Rafique Omar Anderson, Mitchell P. Zeff, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
AMY BERMAN JACKSON, United States District Judge
Plaintiff Orma Buie has brought an action against her employer, the Equal Employment Opportunity Commission (“EEOC“), alleging that the agency1 discriminated against her in violation of the
I. Factual Background
The following facts are taken from the amended complaint, except where noted.2 Plaintiff suffers from lung disease and chronic asthma. Am. Compl. [Dkt. #7] at 2. Her condition makes her highly sensitive to air quality issues. See generally id. Plaintiff was employed as a GS-12 level Senior Investigator in the EEOC‘s Charlotte, North Carolina District Office. Id. at 2, 5. In December 2010, plaintiff was promoted to a GS-13 level Program Analyst position in the Washington, D.C. Field Office, and she relocated to Washington with her disabled mother. Id. at 2. However, shortly thereafter, plaintiff had to return her mother to Charlotte because the care center in Washington was unable to accommodate her mother‘s medical needs. Id. at 3. Plaintiff visited her mother on most weekends and worked four ten-hour days at the Washington office. Id.
When plaintiff began work at the Washington office in January 2011, she contacted her direct supervisor, Mary Burks, to request that defendant accommodate her disability by either providing her with a private office equipped with an air purifier or offering her the option to work remotely from her home (telework). Id. at 2. Michael Dougherty, the office‘s Director of Field Operations, informed Burks that plaintiff would not be permitted to telework and that there were no private offices immediately available for her use. Id. at 2-3. Plaintiff was assigned to sit in an open-floor cubicle, and she found the uncovered space to be too large to permit her air purifier to be effective in alleviating her symptoms. Id. at 3.
In February 2011, plaintiff contacted Kendra Duckworth, the office‘s Disability Coordinator, and presented her accommodation needs. Id. Plaintiff underwent surgery related to her condition in April, and afterwards, she contacted Duckworth via email, phone, and in person to inquire about the status of the accommodation requests. Id. at 3. Upon her return to work in May, plaintiff provided medical information to Duckworth regarding her condition. Id. at 4. According to plaintiff, Duckworth continued to tell her that “Mr. Dougherty was still looking for an office.” Id. Nevertheless, by June, plaintiff had concluded that she would not receive an accommodation in Washington. Id.
B. Plaintiff‘s Harassment and Retaliation Allegations
Plaintiff claims that, upon her arrival in Washington, her supervisor Mary Burks “began to retaliate” against her because plaintiff went home on weekends to see her mother and because she needed accommodations. Id. at 3. Plaintiff states that by March 2011:
Mary Burks had stop [sic] communicating with me. She would yell at me when I asked her questions or needed job related assistance. She told employees that she was not my supervisor and did want to train me. She said she was not a supervisor and did not want the job. She had become rude. She informed others that it was a shame that my family would not help with my mother. Ms[.] Burks was upset because I chose to go see my mother instead of tour Washington with her on the weekends. Id.
Plaintiff alleges that when she returned from her surgery in May, “[t]he harassment escalated.” Id. at 4. She states that Burks would walk away if plaintiff tried to approach her, and that Burks slammed her office door in plaintiff‘s face. Id. Plaintiff also alleges that after she became aware that she would react to the moth balls that Burks used to store her clothing, Burks “purposely came into [plaintiff‘s] cubical [sic] to force [her] lungs to shut down.” Id. Plaintiff maintains that she informed Dougherty and Duckworth of Burks‘s behavior, but that no effective action was taken. Id.
C. Plaintiff‘s Transfer Back to Charlotte
In June 2011, six months after her arrival in Washington, plaintiff requested a transfer back to the Charlotte office. Id. She states that she told her supervisors that she felt “forced” to do so in order to obtain a private office with an air purifier and so that she could telework as needed. Id. She also informed them that her mother had been placed in hospice care. Id.
Plaintiff filed a formal EEOC complaint in September 2011, claiming that defendant subjected her to discrimination, retaliation, and a hostile work environment based on her disability. EEOC Decision at 1. An administrative judge denied her claim on January 7, 2013. Id. at 14.
II. Procedural History
Plaintiff, proceeding pro se, filed a complaint in August 2013 alleging that defendant had discriminated against her and failed to accommodate her disability in violation of the
On July 2, 2014, defendant filed the present motion to dismiss, or in the alternative, for summary judgment. Def.‘s Mot.; Def.‘s Mem. As plaintiff was still proceeding pro se at that time, the Court entered a Fox/Neal Order advising plaintiff that her failure to respond to the motion could result in the dismissal of her case. Fox/Neal Order [Dkt. #18]. On September 1, 2014, plaintiff, who was represented by counsel by that time, filed her opposition to defendant‘s motion. Pl.‘s Opp. to Def.‘s Mot. [Dkt. #23], reformatted at [Dkt. #29] at 15 (“Pl.‘s Opp.“).4
STANDARD OF REVIEW
I. Motion to Dismiss
In evaluating a
“To survive a [
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In assessing a party‘s motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.‘” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). The non-movant may not, however, rest upon the allegations or denials in its pleadings, but must instead establish more than “[t]he mere existence of a scintilla of evidence” to support its position. Anderson, 477 U.S. at 252. A court will “not accept bare conclusory allegations as fact.” Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997); see also District Intown Props. Ltd. P‘ship v. District of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999) (“[T]he court must assume the truth of all statements proffered by the non-movant except for conclusory statements lacking any factual basis in the record.“).
The amended complaint does not set out discrete counts, but a review of the complaint in light of the arguments plaintiff raises in her opposition to defendant‘s motion indicates that plaintiff is seeking to assert three causes of action against the EEOC and a series of individuals: that defendant failed to accommodate her disability in violation of the Rehabilitation Act, Am. Compl. at 2; Pl.‘s Opp. at 17-26; that defendant retaliated against for her accommodation requests, Am. Compl. at 2; Pl.‘s Opp. at 26-29; and that plaintiff‘s immediate supervisor subjected her to a hostile work environment based on her disability.5 Am. Compl. at 2; Pl.‘s Opp. at 29-31; see also Pl.‘s Opp. at 15 (“Ms. Buie filed an Amended Complaint asserting that Defendants’ [sic] violated the Rehabilitation Act, Retaliation, and Hostile Work Environment.“).
As a preliminary matter, defendant is correct that the individuals named in the amended complaint—Jacqueline A. Berrien, Nicholas M. Inzeo, Michael J. Dougherty, Kendra Duckworth, Reuben Daniels, and Mary Burks—are not proper subjects of this action. See Def.‘s Mot. at 1 n.1; see also Def.‘s Reply to Pl.‘s Opp. [Dkt. #26] (“Def.‘s Reply“) at 1 nn.1-2. In her opposition, plaintiff did not address defendant‘s argument on this point and she therefore has conceded the issue. See, e.g., Hopkins v. Women‘s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.“), aff‘d, 98 Fed. Appx. 8 (D.C. Cir. 2004); see also Tax Analysts v. IRS, 117 F.3d 607, 610 (D.C. Cir. 1997) (treating argument as conceded where the plaintiff failed to oppose argument raised by the defendant).
In addition, the Court takes judicial notice of the fact that Jacqueline A. Berrien is no longer the Chair of the EEOC, and that she has been replaced by Jenny R. Yang. See Covad Commc‘ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (stating that a court may take “judicial notice of facts on the public record” in deciding a motion to dismiss) (internal quotation marks omitted). Therefore, the Court will dismiss Ms. Berrien from this case and substitute Ms. Yang, in her official capacity as Chair of the EEOC, as the proper defendant. See Cheney v. U.S. Dist. Court for D.C., 541 U.S. 913, 917 (2004) (“[F]ederal law provides for automatic substitution of the new officer when the originally named officer has been replaced.“), citing
I. Plaintiff‘s failure to accommodate claim partially survives defendant‘s motion.
Plaintiff first alleges that defendant violated the Rehabilitation Act when it failed to offer her a reasonable accommodation for her disability while she was working in the Washington office. Am. Compl. at 2; Pl‘s Opp. at 17-26. Specifically, plaintiff claims that defendant refused to permit her to telework several days per week, or to provide her with a private office and air purifier, despite the fact that both options had previously been available to her in the Charlotte office. Am. Compl. at 2-4; Pl.‘s Opp. at 19-21. Additionally, plaintiff argues that the accommodation that was eventually provided—the transfer back to Charlotte, where she could once again have a private office and the option to telework—was not reasonable because it involved a demotion to a GS-12 position, when there was a vacant GS-13 Mediator position open in Charlotte for which plaintiff was qualified. Am. Compl. at 5; Pl.‘s Opp. at 21-23.
“The
A. Plaintiff has alleged sufficient facts to state a claim that defendant failed to provide her with a reasonable accommodation for her disability.
The Court finds that, while it is a close call, plaintiff has done just enough to state a plausible claim that defendant failed to accommodate her disability. In the amended complaint, plaintiff alleges that she asked to telework or to be placed in a private office with an air purifier in January 2011, but that she was told that she could not telework and that no office was available. Am. Compl. at 2-3. She also states that she continued to request updated information on the status of her accommodation requests throughout the spring of 2011 but that she “was never given an accommodation in Washington.” Id. at 3-5. Finally, she argues that, when she was transferred back to the Charlotte office, she should have received the GS-13 Mediator position. Id. at 5.
Defendant maintains that plaintiff fails to state a plausible claim because defendant accommodated plaintiff‘s disability when it facilitated her return back to the Charlotte office, where telework and a private space were available, and because plaintiff‘s other desired accommodations were either not reasonable or not feasible. Def.‘s Mem. at 10-12. But the reasonableness of plaintiff‘s requests and of the solution she was eventually offered are questions of fact that are inappropriate for resolution on a motion to dismiss. See, e.g., Hodges v. District of Columbia, 959 F. Supp. 2d 148, 155 (D.D.C. 2013) (finding that the plaintiff stated a claim for failure to accommodate where the defendant offered the plaintiff an accommodation but “the parties dispute[d] the reasonableness of the accommodation offered“). Construing plaintiff‘s pro se complaint broadly and granting her all the reasonable inferences to which she is entitled, then, the Court finds that the claim survives the motion to dismiss under
After reviewing the record evidence, the Court finds that plaintiff has not put forth sufficient facts to overcome defendant‘s motion for summary judgment on her failure to accommodate claim, except with regard to her request to telework. So the case will proceed, but it will be narrowed significantly.
Plaintiff argues that she requested three reasonable accommodations which defendant denied: (1) the option to telework several days a week; (2) a private office with an air purifier; and (3) a transfer to the vacant GS-13 Mediator position in the Charlotte office. Pl.‘s Opp. at 19-23. For plaintiff‘s claim to survive summary judgment, plaintiff must demonstrate that these accommodations were reasonable—that is, that they would have enabled her to perform her essential employment functions—and that defendant failed to provide them. It is then up to defendant to show that the accommodations would have caused an undue burden. See Graffius, 672 F. Supp. 2d at 126.
Because plaintiff‘s claim is based on these three separate accommodation requests, which raise distinct legal and factual issues, the Court will analyze each request separately. See, e.g., id. at 127-31.
1. Telework
Plaintiff first claims that she was denied a reasonable accommodation when defendant refused to permit her to telework while in Washington. Pl.‘s Opp. at 19-20. The D.C. Circuit has recognized that the Rehabilitation Act “demands a great deal from federal employers in the way of accommodation. Indeed, in appropriate cases, [it] requires an agency to consider work at home” as a potential accommodation. Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994), citing Langon v. HHS, 959 F.2d 1053 (D.C. Cir. 1992) (holding that an agency must consider accommodating a computer programmer with multiple sclerosis by allowing her to work at home).
Defendant argues that telework was not a reasonable accommodation because plaintiff could not complete her job duties remotely: as a newly-hired Program Analyst, plaintiff had to be present in the office to receive assignments and on-the-job training, and her position required her to review onsite files that could not be accessed remotely. Def.‘s Mem. at 11-12; Def.‘s Reply at 13-14. Defendant has offered sworn testimony from plaintiff‘s supervisors stating that plaintiff was needed at the office “to receive assignments and on-the-job training from Agency managers.” Decl. of Kendra Duckworth, Ex. 4 to Def.‘s Mot. [Dkt. #15-4] (“Duckworth Decl.“) ¶ 7; see also Decl. of Mary Burks, Ex. 3 to Def.‘s Mot. [Dkt. # 15-3] ¶¶ 7-9, 14-17 (describing the essential functions of plaintiff‘s position and the on-the-job training that required her presence in the office).
Plaintiff disputes those assertions. She maintains that there was no formal training for her position, and that she received all of the necessary on-the-job training from Burks in January 2011. Pl.‘s Opp. at 19-20. While plaintiff acknowledges that she could not access the onsite files from home, Dep. of Orma Buie, Aug. 8, 2012, Ex. 1 to Def.‘s Mot [Dkt. #15-1] (“Buie Dep.“) 36:6-19, she takes the position that her work could have been completed remotely by computer and with the assistance of other employees who were present in the office. Pl.‘s Opp. at 19-20 (claiming that plaintiff could have obtained any onsite materials or financial documents remotely by “contact[ing] the field office, provid[ing] the file number, and get[ing] the information needed to complete the task“); Buie Dep. 33:12-20; 36:6-19. According to plaintiff, she could have called Burks in the Washington office and had her pull the relevant files and transmit the information they contained to her by telephone. Buie Dep. 36:6-19.
2. Private Office and Air Purifier
Plaintiff also claims that defendant failed to accommodate her disability when it refused to provide her with a private office and an air purifier in Washington. Am. Compl. at 2-3; Pl.‘s Opp. at 20-21. Plaintiff insists that defendant “fail[ed] to provide any legitimate reason(s) why [her] request for a private office with an air purifier was denied and delayed,” especially in light of the fact that plaintiff was previously provided with a private office in Charlotte. Pl.‘s Opp. at 21. But the facts related to this aspect of her claim are not in dispute.
The Court concludes that no reasonable juror could find that plaintiff‘s request for a private office was actually denied. The undisputed evidence reveals defendant‘s on-going attempts to locate a private office for plaintiff, and it shows that those efforts were cut short by plaintiff‘s own request in June to be transferred back to the Charlotte office.
The reasonable accommodation selection process “is 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 v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014), quoting EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005). “[N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability.” Id., quoting Sears, 417 F.3d at 805. Therefore, “to establish that her request was ‘denied,’ [plaintiff] must show either that [defendant] in fact ended the interactive process or that it participated in the process in bad faith.” Id.
As was true of the defendant in Ward, defendant‘s participation in the interactive accommodation process relating to plaintiff‘s request for a private office “bore all the hallmarks of good faith.” 762 F.3d at 34. Plaintiff has done nothing to controvert that evidence or to show that defendant participated in the process in bad faith. To challenge the proposition that defendant was actively searching for a private office for her throughout the spring and summer of 2011, plaintiff offers only her own unsupported assertion that “offices [we]re all over the place,” and defendant arbitrarily denied them to her because “they just didn‘t want to accommodate [her].” Buie Dep. 56:12-13, 58:6-19. Without more, no reasonable juror could find that defendant‘s good faith efforts to locate an office for plaintiff constituted a denial of plaintiff‘s reasonable accommodation request sufficient for liability under the Rehabilitation Act.
Plaintiff points out that even if her request for a private office was not formally denied, defendant did not locate a suitable office in the six or seven months that elapsed between the time the request was made and when plaintiff sought a transfer instead. Pl.‘s Opp. at 21. She contends that the delay itself constitutes a denial of a reasonable accommodation. Id. at 21, 23-25.
“[T]here are certainly circumstances in which a ‘long-delayed accommodation could be considered’ unreasonable and hence ‘actionable.‘” Mogenhan v. Napolitano, 613 F.3d 1162, 1168 (D.C. Cir. 2010), quoting Mayers v. Laborers’ Health & Safety Fund of N. Am., 478 F.3d 364, 368 (D.C. Cir. 2007). But the delay here is far shorter than the periods that courts in this Circuit and elsewhere have found to be so unreasonable as to constitute a failure to accommodate as a matter of law. See, e.g., Mayers, 478 F.3d at 368 (three-year delay); Faison, 896 F.Supp.2d at 62 (more than three-year delay); see also Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1262-64 (10th Cir. 2001) (finding that less than six-month delay in accommodating the plaintiff‘s sinus problems did not amount to a failure to accommodate where the defendant took steps to assess and carry out the accommodation request and ultimately made the changes the employee requested).7
3. Transfer to GS-13 Mediator Position
Finally, plaintiff contends that she was denied a reasonable accommodation when defendant declined to transfer her to a vacant GS-13 Mediator position in the Charlotte office and instead offered her the GS-12 Investigator job. Pl.‘s Opp. at 21-23. It is well recognized that “[a]n employer is not required to provide an employee that accommodation he 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), quoting Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996). Defendant‘s decision not to transfer plaintiff to the Mediator position, and its decision to offer her the GS-12 Investigator position instead—a position which plaintiff accepted—cannot constitute a denial of a reasonable accommodation simply because plaintiff would have preferred a different or superior assignment.
And in any event, “[t]o survive summary judgment, a plaintiff must proffer evidence from which a reasonable factfinder could determine ... that with reasonable accommodation the disabled employee could perform the essential functions of her position.” Porter v. Jackson, 410 Fed. Appx. 348, 349 (D.C. Cir. 2010), citing Barth, 2 F.3d at 1186-87; Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999). Defendant has put forth evidence indicating that plaintiff could not perform the essential functions of the GS-13 Mediator position because that position required her presence in the office, and it involved constant interaction with the public, which would have exacerbated plaintiff‘s breathing problems. Duckworth Decl. ¶¶ 19-23, 25, 27; Accommodation Notes at 1 (“[Duckworth] discussed [her] concerns that [plaintiff] can not [sic] perform the essential functions of a mediator b/c it requires direct and immediate contact with the public in a confined space.“). Plaintiff has offered no evidence to show that she could perform the essential elements of the Mediator position, even with an accommodation. See Pl.‘s Opp. at 21-23. And her own self-serving and speculative assertion that she could have performed the job “as long as her environment is controlled” by prescreening applicants, id. at 12, is insufficient to satisfy her burden on this issue. See, e.g., Bonieskie v. Mukasey, 540 F. Supp. 2d 190, 195 (D.D.C. 2008) (“Summary judgment for a defendant is most likely when a plaintiff‘s claim is supported solely by the plaintiff‘s own self-serving, conclusory statements.“); Fields v. Office of Johnson, 520 F. Supp. 2d 101, 105 (D.D.C. 2007) (noting that “[s]elf-serving testimony does not create genuine issues of material fact” at summary judgment). Plaintiff has therefore failed to show that a transfer to the GS-13 Mediator position in particular was a reasonable accommodation, and the Court will also grant defendant‘s motion for summary judgment on that aspect of plaintiff‘s failure to accommodate claim.
Plaintiff‘s second ground for relief is that defendant retaliated against her in response to her requests for a reasonable accommodation for her disability. Am. Compl. at 2; Pl.‘s Opp. at 26-29. The Court finds that plaintiff has failed to allege facts sufficient to state a plausible claim of retaliation, and it will grant defendant‘s motion dismiss this count pursuant to
Claims of retaliation under the Rehabilitation Act are analyzed under the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Woodruff, 482 F.3d at 528-29; Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13, 16 (D.C. Cir. 2009). Under this framework, the plaintiff has the initial burden of establishing a prima facie case of retaliation. Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003), citing Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002). “To establish a prima facie case of retaliation under the Rehabilitation Act, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) the employer was aware of the activity; (3) the plaintiff suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action.” Duncan v. Washington Metro. Area Transit Auth., 214 F.R.D. 43, 50 (D.D.C. 2003), citing McDonnell Douglas, 411 U.S. at 802; McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000).
Defendant does not contest that plaintiff engaged in protected activity when she asked her employer to accommodate her disability. But it argues that plaintiff did not suffer an adverse employment action, and that she has not alleged facts sufficient to imply a causal connection between any purported adverse action and her protected status. Def.‘s Mem. at 12-14.
A materially adverse action is one that results in significant harm or hardship, such as affecting the plaintiff‘s “position, grade level, salary, or promotion opportunities,” Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009), quoting Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008), and that “might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.‘” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006). Plaintiff‘s allegations do not meet this standard, because the actions she relies upon are not sufficiently adverse to support her retaliation claim.
Plaintiff identifies two categories of events that she alleges were retaliatory: the harassment she experienced at the hands of her supervisor, Mary Burks, and the circumstances surrounding her requests for reasonable accommodations and her transfer back to the Charlotte office. Am. Compl. at 3-5; Pl.‘s Opp. at 27-29.
The remainder of the employment actions upon which plaintiff relies also cannot be classified as materially adverse. First, plaintiff cites to defendant‘s delay in granting plaintiff‘s telework or private office accommodation requests. Am. Compl. at 3-5; Pl.‘s Opp. at 28-29. But this was the subject of plaintiff‘s failure to accommodate claim, and so it does not supply grounds for a separate retaliation claim. See, e.g., Floyd v. Lee, 968 F. Supp. 2d 308, 334 (D.D.C. 2013) (dismissing the plaintiff‘s retaliation claim for failure to allege any materially adverse employment action and noting that “if the denial of a request for accommodation could itself support a claim of retaliation based on the request, then every failure-to-accommodate claim would be doubled“).
Further, defendant‘s decision not to offer plaintiff the GS-13 Mediator position—a position for which defendant claims plaintiff was not qualified, Def.‘s Mem. at 5—does not constitute a materially adverse employment action. “[G]enerally lateral transfers, or the denial of them, could not be considered adverse employment actions,” except where a lateral transfer is not “truly lateral” because it involves greater benefits or responsibilities. Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003), citing Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). The amended complaint offers no facts that would permit the inference that a transfer from GS-13 Program Analyst to the GS-13 Mediator position was anything but a lateral move.
And in any event, plaintiff has not alleged facts sufficient to show that she was qualified for that position, with or without a reasonable accommodation, as is required to state a claim of retaliation for failure to promote. See, e.g., Nails v. England, 311 F. Supp. 2d 116, 123-24 (D.D.C. 2004) (finding that the plaintiff failed to make out a prima facie case of retaliation where she offered no evidence that she was qualified for positions she sought); see also Aka, 156 F.3d at 1305 (“[T]he ADA does not require that a disabled employee be reassigned to a position for which he is not otherwise qualified.“). Thus, plaintiff has failed to allege facts sufficient to show that defendant‘s decision not to grant her the Mediator position constituted a materially adverse action.
Even if plaintiff‘s willing transfer to Charlotte and voluntary demotion to the GS-12 position could be considered materially adverse employment actions, plaintiff has failed to allege facts sufficient to show a causal connection between those events and her protected activity. In assessing causation in the retaliation context, courts must ask whether there was “‘an unbroken connection between the wrongful act and the injury,‘” or whether there was “‘some new and independent cause intervening between the wrong and the injury.‘” Breeden v. Novartis Pharm. Corp., 646 F.3d 43, 53 (D.C. Cir. 2011), quoting Hicks v. United States, 511 F.2d 407, 420 (D.C. Cir. 1975). Here, plaintiff cannot escape the fact that she initiated the transfer back to Charlotte and willingly accepted the GS-12 Investigator position, and she has failed to allege any facts that would show that the transfer was somehow motivated by retaliatory animus. See Pl.‘s Opp. at 29. Indeed, the complaint tends to show that the transfer provided a means to supply plaintiff with the private office and telework days that she had requested. Am. Compl. at 4.
Because the Court finds that plaintiff has failed to allege that she suffered a materially adverse employment action as a result of her protected activity, or that a causal connection exists between any alleged adverse action and her disability, her retaliation claim fails and the Court will grant defendant‘s motion to dismiss that count.
III. Plaintiff has failed to state hostile work environment claim.
Plaintiff‘s third theory is that the behavior by Mary Burks that formed the basis of the retaliation claim also created a hostile work environment.8 See Am. Compl. at 2-4; Pl.‘s Opp. at 30 (describing plaintiff‘s claim as “a claim for a hostile work environment created by Ms. Burks“). The Court finds that plaintiff has failed to allege facts sufficient to state a claim for hostile work environment, and it will grant defendant‘s motion to dismiss this count.
A. The conduct of which plaintiff complains was not sufficiently severe or pervasive to create a hostile work environment.
Even granting plaintiff the benefit of all inferences to which she is entitled, the Court cannot find, based on the frequency, severity, and pervasiveness of Burks‘s actions, that plaintiff‘s allegations overcome the “demanding” legal standard for hostile work environment claims. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). The incidents plaintiff describes are more akin to “the ordinary tribulations of the workplace” than to conduct that is so extreme or abusive as to cause “a change in the terms and conditions of employment.” Id. (internal quotation marks omitted).
Regarding her allegations that Burks yelled at plaintiff, told others that she did not want to supervise plaintiff, or commented that a fifth grader could do the job, plaintiff does not allege that these incidents were physically threatening or humiliating, and she gives the Court no basis for inferring that Burks‘s behavior was anything more than offensive to plaintiff. See Harris, 510 U.S. at 21 (“[M]ere utterance of an ... epithet which engenders offensive feelings in a[n] employee does not sufficiently affect the conditions of employment....“) (internal quotation marks and citations omitted); see also Richard v. Bell Atl. Corp., 209 F. Supp. 2d 23, 35 (D.D.C. 2002) (“[R]ude comments, unjust criticism, and stressful working conditions[] amount to ordinary tribulations of the workplace that [are] insufficient as a matter of law for a hostile environment case.“) (internal quotation marks omitted). And as for the claim that Burks excluded plaintiff from assignments, courts generally reject hostile work environment claims based on such work-related actions by supervisors. Wade v. District of Columbia, 780 F. Supp. 2d 1, 19 (D.D.C. 2011); see also Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (“[T]he removal of important assignments ... [cannot] be characterized as sufficiently intimidating or offensive in an ordinary workplace context.“).
As for plaintiff‘s allegation that Burks, whose clothing had been preserved with moth balls, “purposely” came into plaintiff‘s cubicle “to force [her] lungs to shut down,” Am. Compl. at 4, this event, standing alone, is not sufficient to state a hostile work environment claim. “Except in extreme circumstances, courts have refused to hold that one incident is so severe to constitute a hostile work environment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002). The amended complaint does not allege that Burks approached plaintiff‘s cubicle frequently or regularly, or even more than once. See Am. Compl. at 4. And plaintiff does nothing to explain this allegation further in her opposition to defendant‘s motion. See generally Pl.‘s Opp. at 29-31.9 Because the “very nature” of a hostile work environment claim “involves repeated conduct,” Morgan, 536 U.S. at 115, without any allegation that Burks approached plaintiff‘s cubicle on multiple occasions with the intent to exacerbate her symptoms, the Court cannot find that this one incident constitutes conduct that is sufficiently severe or pervasive so as to cause a hostile work environment.
B. Plaintiff has not alleged facts sufficient to support a reasonable inference that the allegedly harassing behavior was related to her disability.
Plaintiff has also failed to allege facts sufficient to demonstrate a causal connection between the hostile behavior and her disability. “While a plaintiff is not required to plead a prima facie case of hostile work environment in the complaint, the alleged facts must be able to support such a claim.” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 78 (D.D.C. 2007), citing Sparrow, 216 F.3d at 1114. Where the evidence offered by a plaintiff “bears no connection” to her protected class, it “cannot support of a hostile work environment claim.” Harris v. Wackenhut Servs., Inc., 419 Fed. Appx. 1, 2 (D.C. Cir. 2011); see also Williams v. Dodaro, 576 F. Supp. 2d 72, 92 (D.D.C. 2008) (“[W]orkplace harassment must be related to ... disability to arise to an unlawful hostile work environment.“).
In her opposition, plaintiff does not respond to defendant‘s argument that she has failed to put forth any evidence linking the allegedly hostile behavior to her disability, other than to recognize that defendant raised that point in its motion to dismiss. See Pl.‘s Opp. at 29-31. On that ground alone, the Court could find that plaintiff has conceded the causation issue and that her hostile work environment claim fails. See Hopkins, 284 F. Supp. 2d at 25; see also Tax Analysts, 117 F.3d at 610.
And plaintiff‘s claim that Burks harassed her because of her disability or her accommodation requests is belied by facts offered in the amended complaint and in plaintiff‘s opposition. Plaintiff acknowledges that she and Burks “have known each other for over twenty (20) years,” Pl.‘s Opp. at 7, and that “Burks was aware of [her] disability prior to [plaintiff‘s] coming to the Washington office.” Am. Compl. at 2. And plaintiff admits that Burks was the one who “encourage[d]” her to apply to the position in Washington and that Burks even went so far as to write a recommendation letter on plaintiff‘s behalf. Pl.‘s Opp. at 7. Finally, as plaintiff herself puts it, she believed that “Burks began to retaliate because [plaintiff] went home on the weekends to see [her] mother,” and that “Burks was upset because [plaintiff] chose to go see [her] mother instead of tour Washington with her on the weekends.” Am. Compl. at 3. These facts do not in any way tend to show that the supposed harassment occurred due to plaintiff‘s disability, and rather, imply that the incidents were part of a personal dispute between the two women—the type of “ordinary tribulations of the workplace” that cannot form the basis an actionable hostile work environment. Faragher, 524 U.S. at 788.
The only conduct set forth in the complaint that could possibly be construed as connected to plaintiff‘s disability is the claim that Burks “purposely came into [plaintiff‘s] cubical [sic] to force [her] lungs to shut down,” in reaction to the scent of moth balls. Am. Compl. at 4. But as discussed above, this single statement in the amended complaint, without more, is insufficient to state a plausible hostile work environment claim. And plaintiff has not alleged any facts to connect this conduct to any other discriminatory actions that were related to her disability in any event. See, e.g., Nurriddin, 674 F. Supp. 2d at 94 (dismissing the plaintiff‘s hostile work environment claim because the plaintiff only sought “to transform his challenges to discrete acts of alleged discrimination or retaliation ... into a hostile work environment claim by combining those events with a series of ordinary workplace difficulties“).
Because the Court finds that plaintiff has failed to set forth facts sufficient to allege that defendant subjected her to a hostile work environment on the basis of her disability, the Court will grant defendant‘s motion to dismiss that claim.
The Court finds that plaintiff has failed to allege facts sufficient to show that defendant retaliated against her for requesting reasonable accommodations for her disability, or that defendant subjected plaintiff to a hostile work environment, and it will therefore grant defendant‘s motion to dismiss those claims. Further, the Court finds that defendant is entitled to judgment as a matter of law on plaintiff‘s failure to accommodate claim based on her requests that she be provided with a private office with an air purifier or that she be transferred specifically to the vacant Mediator position. However, the Court will deny defendant‘s motion without prejudice as to plaintiff‘s failure to accommodate claim related to the denial of her request for telework, because a genuine dispute of material fact exists as to whether that accommodation was reasonable or would have imposed an undue hardship on defendant.
A separate order will issue.
AMY BERMAN JACKSON
UNITED STATES DISTRICT JUDGE