Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________
)
CONNIE K. MORRIS, )
)
Plaintiff, )
) v. ) Civil Action No. 07-491 (RWR) )
LISA P. JACKSON, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Connie Morris brings this action under the Rehabilitation Act, 29 U.S.C. § 701 et seq. against her former employer, the Environmental Protection Agency (“EPA”), alleging that the EPA discriminated against her based on disability, failed to accommodate her disability, and retaliated against her for complaining about it. The EPA has moved for summary judgment. Because no material facts are in dispute and the EPA has shown that it is entitled to judgment as a matter of law on Morris’ complaint, the motion for summary judgment will be granted.
BACKGROUND
Morris suffers from a disability she describes as a “yeast sensitivity” that has caused her to have аllergic reactions after being exposed to small concentrations of yeast or other molds. Am. Compl. ¶¶ 12-13. From January 2003 through March 2007, Morris was employed by the EPA as a Technical Information Specialist for the Federal Register Staff of the EPA’s Office of Program Management Operations. Def.’s Stmt. of Mat. Facts (“Def.’s Stmt.”) ¶¶ 1-2; Pl.’s Stmt. of Mat. Facts (“Pl.’s Stmt.”) ¶¶ 1-2. Morris’s position description set forth her duties and placement. She was required to “provide leadership in executing editorial policy and priorities” by coordinating document preparation efforts that were necessary to implement the provisions of federal legislation that the EPA’s Office of Prevention, Pollution, and Toxic Substances (“OPPTS”) administers and enforces. Def.’s Mot. for Summ. J. (“Def.’s Mot.”), Ex. F (“Position Description”) at 1; Am. Compl. ¶ 10. Morris was expected to provide training, assistance and guidance to EPA personnel who were working with regulatory documents, and to respond immediately to questions about the location and status of OPPTS documents that were being circulated for signature. Position Description at 1; Def.’s Stmt. ¶¶ 6-9; Am. Compl. ¶ 10. Morris’ work was “work station oriented,” and she was assignеd to the 6109 Connecting Wing Space known as “EPA West,” an area where 18 other EPA employees worked. Position Description at 1; Def.’s Stmt. ¶¶ 5, 10.
Morris was directly supervised by the Director of the Federal Register Staff, John Richards, and indirectly supervised by the Associate Assistant Administrator of the OPPTS, Marylouise Uhlig. Def.’s Stmt. ¶¶ 3-4. According to Richards, it was “necessary” for Morris to work at an EPA work site.
[Morris] was part of a team. In that role, she was critical to the development of the authoring tools that we were preparing for the entire program. She had to interface with other people. She was critical in the recruitment of C-programmers, because we didn’t have any other programmers on staff, and these people were supposed to assist [Morris] in the programming work she was doing. In addition to that, there was a need for her to help bring people along in the process and help support the staff. I mean, she would help people when they had computer problems; she did a lot of different things within the office. In keeping her within the EPA transportation system, it allowed me to send people to wherever [Morris] was, if necessary, to work with her. Once she was outside the EPA transportation system, there was no way I could make that connection. I personally decided it would be inappropriate for me to be authorizing people to travel to her home or even to an alternative telecommunications site run by GSA, where we had no transportation for these people. So keeping her inside the EPA transportation system was the key element, and what we tried to do is find her a place within the EPA transportation system where she could be reached that worked for her. . . . [The EPA transportation system is a] series of shuttle buses, time-consuming, fixed schedule buses to transport EPA people from one site to another. But the key element is they’re free. I didn’t have to reimburse people for Metro, I didn’t have to do anything as far as paying for taxicabs, and I didn’t - - I couldn’t require other people to walk to wherever she was.
Def.’s Mot., Ex. D (“Richards’ Dep.”) at 35-37.
In November 2004, Morris reported to Richards that she was experiencing an “allergy to the EPA workplace.” Def.’s Stmt. ¶ 12, Ex. C at 1. Richards allowed Morris to test various areas to dеtermine whether she thought she could work comfortably in a different location. Richards allowed Morris temporarily to work from home. Morris eventually decided to work in a conference room located in the “EPA East” building. Def.’s Stmt. ¶¶ 14-16. However, in December 2004, Morris complained to Richards that she was again experiencing allergic reactions in the EPA East conference room, and she asked to work from home permanently. Id. ¶ 17. Richards purchased air purifiers and air filters and tested the air quality in the areas where Morris worked. The [1] air quality testing indicаted that the air in Morris’ workspace was actually superior to outside air, and that it contained no fungal growth, no airborne microbial amplification, and did not increase the risk to Morris’ health. Id. ¶¶ 18-19. [2] On April 29, 2005, Morris asked to permanently work from her home, as a reasonable accommodation for her “extreme sensitivity” to “[o]ngoing exposure to mold, mildew, and dust mites from the work environment,” which caused “numerous allergic reactions with episodes of body swelling, breathing difficulties, bronchitis, rashes, rapid heart rate, rise in blood pressure and several other symptoms relating to allergy sensitivity.” Am. Compl. ¶ 6; Def.’s Stmt. ¶¶ 23-24. In July 2005, the EPA’s National Reasonable Accommodation Coordinator issued a “Determination of [1] According to Richards, Morris “did the research, found the filters,” and then the EPA put them over the vents which “improved the situation at times.” Richards’ Dep. at 26-27.
[2] Morris does not dispute that the testing occurred, but disputes that some of the testing was done for her benefit and disputes the relevance of the testing. Pl.’s Stmt. ¶¶ 18-19. Disability” regarding Morris’ request, stating that “after careful review” of the medical information provided by Morris, which included reports from her primary doctor and from Dr. Ahmad Shamin, “it is confirmed that a medical condition exists that substantially limits [Morris’] major life activities of breathing and walking and therefore she is determined to be a person with a disability” under the Rehabilitation Act, giving EPA management the authority to provide Morris with a reasonable accommodation. Pl.’s Opp’n, Ex. 5. Afterwards, the EPA assigned Morris to a building which was designated as a “clean space” facility, located in Crystal Station, Virginia. Morris was the only member of Federal Register Staff who worked at the Crystal Station building, and when contractors or other members of the Federal Register Staff had to interact with Morris in person, they had to travel to the building in Crystal Station. Am. Compl. ¶ 13; Def.’s Stmt. ¶¶ 25-27.
Morris informed the EPA that she continued to suffer allergic reactions at the Crystal Station building. The EPA tested the air quality in the EPA building at Potomac Yards, and found that the air quality there was cleaner than ambient air. In June 2006, the EPA relocated Morris to the EPA’s building in Potomac Yards. Am. Compl. ¶ 23; Def.’s Stmt. ¶ 29. Morris asserted, though, that she was experiencing allergic reactions that were triggered by that building. Am. Compl. ¶ 26. Richards asked Morris to provide medical documentation to support her assertion that the air in the building at Potomac Yards triggered her allergic reactions. Morris did not provide any, and in October 2006, Richards reassigned Morris back to the EPA East building. Am. Compl. ¶ 30; Def.’s Stmt. ¶ 30; Def.’s Mem., Ex. C. at 2. In December 2006, a separate Equal Employment Opportunity Commission (“EEOC”) complaint that Morris filed [3]
against the EPA was dismissed, and Morris was ordered to report to work at EPA-East on January 2, 2007. Morris did report for work on January 2, 2007, but she left two hours after she arrived. In February 2007, Morris was charged with being absent without leave for 412 hours between August 2006 and December 2006, and her employment was terminated effective March 10, 2007. Am. Compl. ¶¶ 8; Def.’s Stmt. ¶¶ 31-34.
In March 2007, Morris filed this action. Her amended two- count complaint alleges that the EPA failed to accommodate her disability (Count 1) and retaliated against her (Count 2). Am. Compl. ¶¶ 58-66. The EPA has moved for summary judgment on both counts, arguing that Morris is not disabled within the meaning of the Rehabilitation Act, that even if she were disabled she was not a qualified person with a disability, that her desired accommodation (working at home) was not a reasonable one, and that the failure to acquiesce to Morris’ request was not a mаterially adverse employment action that can form the basis of a retaliation claim. Morris opposes.
DISCUSSION
“‘Summary judgment may be appropriately granted when the
moving party demonstrates that there is no genuine issue as to
any material fact and that moving party is entitled to judgment
as a matter of law.’” Modis v. Infotran Sys., Inc., 893 F. Supp.
2d 237, 240 (D.D.C. 2012) (quoting Pueschel v. Nat’l Air Traffic
Controllers Ass’n,
181, 189 (D.D.C. 2008) (quoting Anderson v. Liberty Lobby, Inc.,
(D.C. Cir. 2010)). “A genuine issue is present in a case where
the ‘evidence is such that a reasonable jury could return a
verdict for the non-moving party,’ a situation separate and
distinct from a case where the evidence is ‘so one-sided that one
party must prevail as a matter of law.’” Modis, 893 F. Supp. 2d
at 239-40 (quoting Anderson,
I. DISCRIMINATION UNDER THE REHABILITATION ACT
“Section 501 of the Rehabilitation Act, codified at 29
U.S.C. § 791, is the exclusive remedy for federal employees
alleging that federal agencies engaged in disability
discrimination.” Graffius v. Shinseki,
Cir. 1993)). To determine what an appropriate, reasonable
accommodation would be, an agency should “initiate an informal,
interactive process with the qualified individual with a
disability in need of accommodation.” 29 C.F.R. § 1630.2(o)(3).
To survive a motion for summary judgment, a plaintiff alleging
that an agency failed to make a reasonable accommodation must
submit evidence showing that (1) she had a qualifying disability,
(2) her employer had notice of the disability, (3) with
reasonable accommodation she could perform the essential
functions of the position, and (4) she requested a reasonable
accommodation but the employer denied her request. See Schmidt
v. Solis,
The EPA first argues that Morris was not disabled. (Def.’s
Mem. at 12.) “Disability” is a term defined by the
Rehabilitation Aсt to carry a specific meaning. “An individual
is disabled under the Rehabilitation Act only if she can show
that she (1) ‘has a physical or mental impairment which
substantially limits one or more . . . major life activities,’
(2) ‘has a record of such an impairment,’ or (3) ‘is regarded as
having such an impairment.’” Adams v. Rice,
According to the EPA, Morris was not disabled because the symptoms of her allergies and sensitivities could be overcome by taking over-the-counter medication or by wearing a paper mask; because “traveling, visiting friends and family, entertaining, dining out, and shopping are not major life activities”; and because Morris’ allergic reactions occurred only while at work, which showed that they did not substantially limit her major life activities. Def.’s Mem. at 14, 17. However, Morris has alleged that she experiences symptoms of her condition away from the workplace, see Am. Compl. ¶ 12., the EPA has not argued that breathing or walking are not major life activities, and the EPA’s position is directly contradicted by the EPA’s National Reasonable Accommodatiоn Coordinator’s determination in 2005 that Morris was disabled by a condition that limited the major life activities of breathing and walking. The EPA alleged that Dr. Shamin “recanted” his opinion upon which the Reasonable Accommodation Coordinator’s determination was partly based. Def.’s Mem. at 16. However, Doctor Shamin did not “recant” his opinion; he merely acknowledged that he worked with Morris’ attorney to draft a letter addressed to Richards, describing the nature of Morris’s health problems. Pl.’s Opp’n, Ex. 40 at 122- 127. Dr. Shamin continued to agree with the conclusions of that letter. Id. at 123. The EPA has not explained why that determination was incorrect, or why a prior determination by the Agency that a plaintiff was disabled would not, at the very least, create a genuine issue of material fact as to whether a plaintiff was disabled under the Rehabilitation Act. Therefore, the EPA’s argument that there is no genuine dispute that Morris was not disabled fails.
The EPA also argues that Morris was not able to perform the
essential functions of her job with a reasonable accommodation,
and that her requested accommodation was not reasonаble because
it would eliminate an essential function of her job. Def.’s Mem.
at 19, 21. An individual with a disability under the
Rehabilitation Act, 29 U.S.C. § 705(20)(B), must be qualified to
be protected by the Act - - “that is, he or she, ‘with or without
reasonable accommodation,’ must be able to ‘perform the essential
functions of the employment position that such individual holds
or desires.’” Taylor v. Rice,
29, 34 (1st Cir. 2000) (holding that in the absence of evidence
of discriminatory animus, courts “generally give substantial
weight to the employer's view of job requirements”); Kalekiristos
v. CTF Hotel Mgmt. Corp.,
“[A]n employer is not required to provide an employee that
accommodation [s]he requests or prefers, the employer need only
provide some reasonable accommodation.” Aka v. Washington Hosp.
Ctr.,
According to the EPA, attеndance at EPA offices was an essential function of Morris’ position. Morris disagrees and argues that she could perform all of the functions of her position remotely from her home. Morris argues that Richards undermines the EPA’s position that attendance at EPA worksites was an essential function of her position because he “acknowledged that members of his staff have been allowed to work from home on a case-by-case basis for limited or time-specific periods.” Pl.’s Opp’n at 11. However, as the EPA points out, Morris’ position description stated that it was “work station oriented with normal movement throughout the office to perform assigned tasks [and to use] dedicated specialized equipment,” that Morris would be required to “coordinate document preparation efforts and other information liaison specialists when size, complexity and time constraints require a full team of people to work on a single Federal Register document package,” and that Morris would be responsible for providing any “necessary training and/or assistance to Agency personnel working with rеgulatory documents.” Def.’s Mem. at 19-20. In addition, Morris has not pointed out that identically situated people with a position like hers were allowed to work from home. Richards, Morris’ supervisor, stated that Morris’ presence in the EPA buildings was “necessary” and that her job required interaction with the Federal Register staff and with contractors and vendors that had to occur in the EPA office space. See Richards’ Dep. at 35-37. While Morris asserts that the EPA could have sent Federal Register staff, contractors and vendors to her home, requesting that accommodаtion would not be reasonable as a matter of law because it would have eliminated an essential function of Morris’ position, and would impose an undue burden on the agency. By Morris’ own account, her home is “highly controlled” and “the people . . . who come to the house on a regular basis” have to “change their clothes and wash upon entering the house from the outdoors.” Pl.’s Opp’n, Decl. of Connie Morris ¶ 18. An accommodation that requires an agency to send contractors and staff to an employee’s house where they wоuld then be required to change their clothing and wash would place an undue burden on the agency.
Morris argues that the opinion in Woodruff v. Peters, 482
F.3d 521 (D.C. Cir. 2007), supports her assertion that her
request to telecommute was a reasonable accommodation. However,
unlike Morris, the plaintiff in Woodruff was asking merely to
extend workplace accommodations, namely being allowed to set his
own schedule and to take breaks in the middle of the day, that he
had been afforded “de facto” for roughly two years. Woodruff,
II. RETALIATION
In Count 2 of her amended complaint, Morris alleges that from December 2004 until the time her employment was terminated, the EPA retaliated against her for requesting a reasonable accommodation by “taking adverse employment actions against her” including terminating her employment. Am. Compl. ¶¶ 64-66. However, Morris does not identify the adverse employment actions she was subjected to other than the termination of her employment, and that Richards “stopped attempting to accommodate her” and “required her to move into a small, exposed cubicle at the Potomac Yards facility . . . [and] began demanding additional medical documentation” in August 2005, after she filed her formal complaint of discrimination. Pl.’s Oрp’n at 26. The EPA moves for judgment on this claim, arguing that Morris has not identified a causal connection between the termination of her employment and her protected activity.
“The elements of a claim of retaliation are that the
plaintiff engaged in a statutorily protected activity, the
employer treated the plaintiff adversely, and a causal connection
existed between the two.” Fields v. Geithner, 840 F. Supp. 2d
128, 137 (D.D.C. 2012) (citing Wiley v. Glassman,
Here, Morris has not pointed to any actions by Richards that could be construed as retaliation. While she claims that “the words and conduct of [Richards] obstructed her efforts to do her job,” Pl.’s Opp’n at 26, the record evidence shows that Richards, if anything, attempted to facilitate Morris’ ability to perform her job. In addition, Morris argues that roughly ten months after she filed her formal complaint of discrimination, Richards retaliated against her by moving her to a “small, exposed cubicle at the Potomac Yards facility.” Pl.’s Opp’n at 26. Howevеr, too much time passed between the protected activity and the purported retaliatory act to support an inference of causation under a theory of temporal proximity. Morris also fails to rebut the EPA’s legitimate, non-discriminatory reason for terminating her employment - - her decision to be absent without leave for 412 hours between August 2006 and December 2006.
CONCLUSION
The EPA has shown that Morris could not perform the essential functions of her position with a reasonable accommodation, that Morris’ proposed accommodation was not reasonable, and that Morris has not established the elements to support her claim of retaliation. Therefore, the EPA’s motion will be granted and judgment will be entered for the EPA. An appropriate final order accompanies this Memorandum Opinion.
SIGNED this 30th day of October, 2013.
/s/ RICHARD W. ROBERTS Chief Judge
Notes
[3] In August 2005, Morris filed a complaint with the EEOC alleging sex and disability discrimination against the EPA, in which she sought a restoration of sick and annual leave that she allegedly used as a result of her “workplace sensitivity,” and an elimination of management’s “threats of termination of employment[.]” Am. Compl. ¶ 7; Def.’s Mem. Ex. I. Morris received an adverse decision from the EEOC’s Administrative Law Judge on that complaint in December 2006. Am. Compl. ¶ 7; Def.’s Mem. Ex. J.