Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TAHARA RAMSEY,
Plaintiff,
Civil Action No. 12-1035 (BAH) v.
Judge Beryl A. Howell ERNEST MONIZ,
Secretary of Energy ,
Defendant. MEMORANDUM OPINION
The plaintiff, Tahara Ramsey, filed this employment discrimination action against Steven Chu, in his official capacity as the Secretary of the Department of Energy (“DOE”), after an extended period of conflict between the plaintiff and at least four of her supervisors. [1] The plaintiff alleges both discrete and retaliatory discrimination and a hostile work environment, all in violation the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq . Compl. ¶ 1, ECF No. 1. The defendant has moved to dismiss the Complaint or, alternatively, for summary judgment on grounds that the plaintiff failed to exhaust her administrative remedies prior to bringing suit, does not qualify for protection under the Rehabilitation Act, and that no reasonable jury could find discrimination in light of the extra-pleading material submitted. Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.’s Mot.”), ECF No. 8; Mem. Supp. of Mot. Summ. J. (“Def.’s Mem.”), ECF No. 8. For the reasons stated below, the defendant’s motion is granted.
I. BACKGROUND
A. Factual History
The plaintiff suffers from depression and anxiety. Compl. ¶ 4; Def.’s Statement of Mat. Facts (“Def.’s SMF”) at ¶ 7, ECF No. 8-1. Since 2005, she has worked as a budget analyst for the DOE. Compl. ¶ 4. Throughout her employment, the plaintiff clashed with numerous supervisors, although, based upon affidavits submitted by the plaintiff from two of her colleagues, she was not the only unhappy employee in her office. See Aff. of Tahara Ramsey (“Pl.’s Aff.”), DOE Report of Investigation (“ROI”), Ex. 6 at 5, ECF No. 9-1 (“The whole office was in an uproar by April 2009 with grievances being filed by nearly three [quarters] of the staff.”); Aff. of Sonya Rush (“Rush Aff.”), ROI Ex. 12 at 2 (“Ms. Kupferer knew that none of us was happy with her, and multiple people were filing grievances.”); Aff. of Harry Jacobs (“Jacobs Aff.”), ROI Ex. 11 at 1-2, (“I know we had previous management issues . . . and they had some very unpractical [ sic ] management practices. . . . I had to file a grievance toward both of them in response to a harassing email from Ms. Smith’s husband. . . . Ms. Kupferer and Ms. Smith . . . were nasty, hostile and unprofessional people.”). Given the myriad complaints made by the plaintiff about her treatment at DOE over the course of almost five years, the incidents she describes are summarized below by the year of their alleged occurrence.
1. 2007–2008 Alleged Incidents
In late 2007, the plaintiff’s depression worsened and she “experienced a significant increase in the intensity of her disability,” causing her to miss time at work. Compl. ¶ 7. On January 2, 2008, she “requested three hours of advanced sick leave” from her supervisor, Toni Smith; this request was denied. Compl. ¶ 9; see also Formal Compl. of Discrimination (“First EEO Compl.”), ROI Ex. 3 at 5. Nevertheless, on January 3, 2008, the plaintiff informed her supervisor that she would be “out of the office and under a doctor’s care for the next two weeks.” *3 First EEO Compl. at 9. As a result of “DOE Order 322.1 A (8),” Ms. Smith requested that the plaintiff provide specific medical documentation from her treating physician in order to approve her leave, which documentation was required to include:
1) a clear and understandable diagnosis of [the plaintiff’s] condition[;] 2) the prognosis for [her] return to work, including a statement indicating the nature and duration of any long-term impairment that may affect the performance of [her] duties; and 3) an explanation of the impact of [her] condition on overall health and activities, including the bases for the conclusion stated that restrictions are or are not warranted.
Id. Ms. Smith also provided the plaintiff with a “medical release form” that would “allow a confidential exchange/discussion between the agency’s physician or practioner and [her] physician” and informed the plaintiff that she would be placed on Absent Without Leave (AWOL) status until she submitted the requisite medical documentation. The plaintiff claims that she was “unaware of the unreasonableness of the request” and was intimidated by Ms. Smith’s “coercion” and “threats to continue her in AWOL status.” Compl. ¶ 10–12. Nevertheless, in compliance with the request, on January 15, 2008, the plaintiff provided email documentation from her doctor to Ms. Smith containing the specific answers to this supervisor’s questions. See Pl.’s Aff. at 19. Two days after receiving the requested medical information, Ms. Smith approved the plaintiff’s request for advanced sick leave for the entire two-week period. id. at 19.
Upon returning to work, the plaintiff noticed security guards regularly patrolling the office corridors. See id. at 3. The plaintiff alleges that these security guards were present because Ms. Smith, among others, had “submitted a complaint to security stating that they were afraid of [the plaintiff] . . . and [that she] was a mental patient who suffered from depression and could be volatile.” Id . Later in May 2008, the plaintiff became so concerned about her work *4 environment that she called a nurse at Kaiser Permanente to discuss her situation. Decl. of Tahara Ramsey (“Pl.’s Decl.”), at ¶ 25, ECF No. 14-3; Compl. ¶ 13. According to the plaintiff, the nurse asked her whether she “was going to hurt [her] supervisor” to which the plaintiff responded “No . . . I just do not want to encounter them . . . because they [are] causing me a lot of hurt.” Pl.’s Aff. at 4. The plaintiff provided the nurse with Ms. Smith’s, and others, phone numbers “in the hopes that [the nurse] could get them to understand [her] fragile state, and hopefully allow [her] to go home for the day.” Neither parties dispute that the nurse subsequently contacted the plaintiff’s superiors. The plaintiff did not participate in the telephone conversation but avers that “the medical call for help was twisted” and that her supervisor “lied about the nurse’s message.” Compl. ¶ 15. According to the defendant, the nurse’s message was clear: The plaintiff threatened Ms. Smith with bodily harm. Aff. of Florence Kupferer (“Kupferer Aff.”), ROI Ex. 9 at 2; see also Compl. ¶ 15.
Following the nurse’s call, security guards escorted the plaintiff from the building. She was placed on paid administrative leave for months to allow for an investigation. See Def.’s SMF ¶¶ 5–6; Compl. ¶ 16. At the conclusion of the investigation, the plaintiff was suspended for thirty days without pay and a record of the incident was placed in her administrative file. See Compl. ¶ 17; Pl.’s Aff. at 5. The plaintiff returned to work in December 2008. During this period, at least one of the plaintiff’s co-workers felt that Ms. Smith and Ms. Kupfererer “would deliberately do things that caused [the plaintiff] difficulties” and that they would “taunt [the plaintiff] because of her emotional responses,” but that the supervisors in general “intentionally did things to their employees to make it difficult . . . .” Rush Aff. at 1–2.
2. 2010 Alleged Incidents
In 2010, the plaintiff began working for a new supervisor, Lametia Browne, the new Deputy Director. [2] Compl. ¶ 21. The plaintiff believes that Ms. Browne was hired as part of a “vendetta” against the office staff. Pl.’s Aff. at 6. She further alleges that Ms. Browne previously “directed Ms. Smith” in requesting [the plaintiff’s] medical information and that Ms. Browne “is the culprit and has been behind all of the occurrences that have happened to [her].” Id. at 8.
On March 16, 2010, the plaintiff slipped and fell at work. The plaintiff requested from Ms. Browne “the information that [she] needed to fill out workers compensation.” Id. at 7. A few weeks later, the plaintiff emailed Ms. Browne noting that she “was not [supposed] to be charged any leave for the incident” and asking “when the issue with [her] leave will be resolved.” Id . at 14. The next day, Ms. Browne responded that the plaintiff “need[ed] to submit [her] CA-1 form . . . for completion” and that, once the appropriate documentation was submitted, Ms. Browne would instruct the timekeeper to replace the plaintiff’s sick leave with continuation of pay leave. Id. at 13. The Office of Worker’s Compensation Procedures guide states that CA-1 (Traumatic Injury) claims are “[i]nitiated by the employee,” who is responsible for completing the CA-1 and filing it with a supervisor. Id. at 15. The supervisor’s responsibility is to “[r]eview the CA-1 for completeness and accuracy” and to “[a]ssist the employee in correcting any deficiencies found.” Although the plaintiff originally took “sick leave” following her fall, Ms. Browne noted that once the plaintiff’s “Workers’ Compensation claim [was] approved,” Ms. Brown would coordinate with the plaintiff’s “timekeeper [to] minus sick and add continuation of pay . . . for *6 March 17, 18, and 19.” Id. at 13. Despite these instructions, the plaintiff states that Ms. Browne “refused to provide any guidance for [her] to follow” and that Ms. Browne “did not tell [her] how to get [her] leave back.” Id . at 7.
In early May 2010, the plaintiff was summoned and selected for jury duty for a period of five days. Id. at 6, 11. Following the conclusion of her jury duty, the plaintiff informed Ms. Browne that she needed to repair her air conditioner and would therefore be absent from work for an additional day. Id . Ms. Browne responded that “ideally [the plaintiff] should have reported [to ORM] for duty once [her] commitment to jury duty was over,” and that “[the plaintiff] must identify the type of leave [requested].” Id . at 11. Ms. Browne added that she would approve the leave requests “[u]pon receipt of [the plaintiff’s] leave requests.” Ms. Browne also noted that the plaintiff should “submit . . . the original court documentation [she] would have received following [her] jury service.” Id . The record does not indicate whether the plaintiff filed the appropriate paperwork as her supervisor requested, or whether the plaintiff’s request for an additional day of leave following her jury duty was granted.
On May 14, 2010, the plaintiff requested advanced sick under the Family Medical Leave Act (“FMLA”) in order to care for her son following a scheduled surgery. Browne Aff. at 2; Pl.’s Aff. at 7. According to Ms. Browne, the plaintiff stated that she did not want to provide the requisite medical documentation directly to her supervisors, because it contained her son’s personal medical information. Browne Aff. at 2. Consequently, Ms. Browne gave the plaintiff the option of submitting the required documentation to the Office of Employee and Labor Relations. ROI Ex. 15; Def.’s SMF ¶ 26. By May 20, 2010, the plaintiff’s request was approved. Def.’s SMF ¶ 28; Browne Aff. at 3.
While pursuing FMLA leave to care for her son, the plaintiff sought to enroll in the DOE “Flexiplace” program, which would allow her to work from home in certain circumstances. ROI Ex. 18 at 1. Flexiplace “covers employees who work at sites other than their official workplace.” Handbook on DOE-Flex, (“Flexiplace Handbook”), ROI Ex. 19 at 1. One Flexiplace arrangement is designed “to accommodate employees for their medical issues,” id . at 4, which includes “car[ing] for a family member . . . who requires care or assistance,” Flexiplace Handbook at 6. To qualify, an employee must “provide a plan whereby he/she will ensure that there is no disruption to the performance of work task, and that there is medical documentation to justify the medical flexiplace.” Id . at 7. On May 21, 2010, the plaintiff “placed the completed copy [of her Flexiplace application] in [Ms. Browne’s] inbox.” Pl.’s Aff. at 7. Two weeks later, the plaintiff followed-up with Ms. Browne regarding the status of her medical Flexiplace application. at 9. A month later, the plaintiff requested an update on her Flexiplace application. Ms. Browne informed her that her application was incomplete and required more supporting medical documentation. Id . at 25; Browne Aff. at 3. The application also lacked “a plan . . . that would address any dependent care issues as outlined by the Office of Policy and International Affairs’ Handbook for Flexiplace.” Browne Aff. at 3. Ms. Browne has not approved medical Flexiplace arrangements for any of her supervised employees. Browne Aff. at 3.
In August 2010, the plaintiff returned to work on crutches after breaking her ankle. Nevertheless, according to the plaintiff, Ms. Browne “failed to remove multiple carts from in front of [her] office door.” Pl.’s Aff. at 7.
Later in August 2010, Todd Dixon, the Director of ORM and the supervisor of both the plaintiff and Ms. Browne, instructed the plaintiff not to use the phones. March 25, 2011 EEO Compl. (“Second EEO Compl.”) at 10, ECF No. 21-2 . [3]
In October 2010, Mr. Dixon called the plaintiff unprofessional during a closed door meeting and cautioned the plaintiff regarding her use of the telephone. Second EEO Compl. at 10.
In November 2010, the plaintiff received a work evaluation of “meets expectations,” which was the “lowest performance appraisal” within her division. Id. ; see also Non- Supervisory Performance Plan and Appraisal Form, ROI Ex. 16.
On December 3, 2010, Mr. Dixon “interrogat[ed]” the plaintiff during a “closed door meeting” regarding the amount of work being done by the plaintiff and whether it was commensurate with her GS-13 grade level. Second EEO Complaint at 9 .
Less than a week later, on December 8, 2010, Ms. Browne refused to provide the plaintiff “with important information” about her work assignment and Mr. Dixon was “disrespectful and rude” to the plaintiff. Id . at 8.
On December 9, 2010, Ms. Browne “targeted and counseled” the plaintiff on her leave usage. Id. at 8.
On December 15, 2010, Mr. Dixon sent the plaintiff “hostile and intimidating work related emails . . . [regarding] the FY 2012 budget analysis.” at 6–7.
3. 2011 Alleged Incidents On January 20, 2011, Ms. Browne denied the plaintiff’s request for administrative leave and also denied the plaintiff’s request for a union representative during a meeting that the plaintiff considered to be disciplinary in nature. Id. at 5–6.
On January 25, 2011, Mr. Dixon ordered the plaintiff to “hand walk hard copies of the Congressional Report” to the four Deputy Assistance Secretaries and be more “subservient to the higher up managers.” Id. at 6.
On January 26, 2011, Ms. Browne denied the plaintiff’s request for annual leave and again, on February 1, 2011, denied the plaintiff’s request for thirty minutes of Leave Without Pay. Id. at 5.
On February 11, 2011, the plaintiff met with DOE’s alternative dispute resolution counselor, who encouraged her to drop her EEO case and to mediate with her managers instead. Id. at 4. The plaintiff refused to drop her EEO case and two hours later received an invitation to a February 15, 2011 meeting, at which she “was placed on Leave Restriction” by Ms. Browne due to her tardiness in January 2011. Id. at 4–5.
On March 18, 2011, Mr. Dixon approached the plaintiff “abruptly” and “aggressively.” Id. at 3.
Finally, on March 21, 2011, Mr. Dixon issued the plaintiff a Letter of Reprimand for making “false email statements.” at 3, 16–18.
B. Procedural History
The plaintiff first contacted an EEO Counselor on May 7, 2010 and filed her first formal Complaint of Discrimination on July 2, 2010. ROI, Ex. 2. In the First EEO Complaint, the plaintiff requested that Ms. Browne “be removed as [her] direct supervisor” and that she be directly supervised by Mr. Dixon. First EEO Compl. at 1–4. The EEO notified the plaintiff on *10 July 23, 2010, that her complaint had been accepted as to only two issues: whether she was “discriminated against when [her] supervisor: (1) questioned/harassed [her] about [her] use of the [FMLA]; and (2) denied [her] request to work from home.” Notice of Acceptance/Dismissal of Formal Compl. of Discrimination, ROI Ex. 5 at 1. After the filing of the First EEO Complaint, the plaintiff continued to feel aggrieved by her treatment at work between August 2010 and March 2011 and she filed a Second EEO Complaint on March 25, 2011. See Second EEO Compl. at 1. The Second EEO Complaint alleged that she was subject to a hostile work environment and retaliation in response to her first EEO Complaint.
After the plaintiff submitted her First EEO Complaint, the DOE initiated an investigation, which started on September 23, 2010 and concluded on December 13, 2010. Authority to Investigate, ROI Ex. 1 at 1–2. This First EEO Complaint was consolidated with the Second EEO Complaint, and, on Nov. 25, 2011, the plaintiff requested an administrative hearing on both complaints. See Def.’s Reply to Pl.’s Suppl. Mem. (“Def.’s Supp. Reply”) Ex. C at 1–2, ECF No. 21-3. After numerous discovery requests and stays beginning in January 2012, the plaintiff opted to forgo an administrative hearing and proceed directly to federal court. She filed her Complaint in this Court on June 22, 2012, 722 days after her First EEOC Complaint and 456 days after her Second EEOC Complaint. See generally Def.’s Supp. Reply, Exs. E-O; Compl. The plaintiff’s administrative hearing was dismissed because the plaintiff filed the instant action. [4] See Order of Dismissal Following Filing in Federal Ct., Def.’s Supp. Reply, Ex. Q.
II. LEGAL STANDARD
A. Conversion to Motion for Summary Judgment The DOE has moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), for dismissal, or, alternatively, for summary judgment, pursuant to Federal Rule of Civil Procedure 56 on all of the plaintiff’s claims. See Def.’s Mot. Federal Rules of Civil Procedure 12(d) provides that if “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment,” and if a motion is so converted, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” F ED . R. C IV . P. 12(d).
The Circuit reviews a district court's decision to convert a motion to dismiss into a
summary judgment motion for an abuse of discretion.
Colbert v. Potter
,
If extra-pleading evidence “is comprehensive and will enable a rational determination of a summary judgment motion,” a district court will be more likely to convert to summary judgment, but “when it is scanty, incomplete, or inconclusive,” the district court is more likely to decline to convert to summary judgment and permit further discovery. See 5C Charles Alan Wright, et al., F EDERAL P RACTICE & P ROCEDURE § 1366 (3d ed. 2012). Thus, there is no bright- line threshold for conversion under Rule 12(d); the touchstone is fairness and whether consideration of summary judgment is appropriate, in light of the nature of the extra-pleading material submitted, the parties’ access to sources of proof, the parties’ concomitant opportunity to present evidence in support or opposition to summary judgment and the non-moving party’s need, as reflected in a sufficiently particularized request, under Federal Rule of Civil Procedure 56(d), for discovery in order to respond adequately. Consideration of these factors, including that both parties submitted exhibits in support and opposition to the alternative motion for summary judgment and neither party has requested an opportunity for additional discovery before resolving this motion, the Court will consider matters beyond the pleadings and treat the defendant’s motion as one for summary judgment. [5]
B. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “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.” F ED . R. C IV . P. 56(a). Summary judgment is properly
granted against a party who, “after adequate time for discovery and upon motion, . . . fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett
, 477 U.S.
317, 322 (1986);
Talavera v. Shah
,
In ruling on a motion for summary judgment, the Court must draw all justifiable
inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as
true.
Liberty Lobby
,
III. DISCUSSION
The plaintiff’s complaint asserts two broad claims: First, that the defendant subjected her to adverse employment actions based on her disability and in retaliation for her participation in protected activity, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., Compl. ¶ 1; and, second, that she was subject to a hostile work environment, also in violation of the Rehabilitation Act. Before reaching the merits of the plaintiff’s claims for disability discrimination, retaliation, and hostile work environment, the Court must consider the defendant’s threshold challenge to the plaintiff’s claims: Whether the plaintiff exhausted her administrative remedies as required by the Rehabilitation Act, 29 U.S.C. § 794a.
A. Exhaustion of Administrative Remedies
Under the Rehabilitation Act, a failure to exhaust administrative remedies is a
jurisdictional defect, requiring dismissal for lack of subject-matter jurisdiction under Rule
12(b)(1).
See Spinelli v. Goss
,
1. Overview of Administrative Process
The procedures governing administrative processing of discrimination complaints brought by employees of the federal government under the Age Discrimination in Employment Act, Title VII, and the Rehabilitation Act are set forth in 29 C.F.R. Part 1614 (Federal Sector Equal Employment Opportunity). 29 C.F.R. § 1614.105. An employee “must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.” Id. § 1614.105(a). “An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory . . . .” § 1614.105(a)(1). If the matter is not resolved through informal counseling, the aggrieved employee must, within 15 days, file a written complaint with the agency that allegedly discriminated against him or her. See id. § 1614.106(a)–(c). The agency must investigate the matter within 180 days or reject the complaint and issue a final dismissal unless the parties agree in writing to extend the investigation period. See id. §§ 1614.106(e)(2), 1614.107. At the conclusion of the agency's investigation, the *16 complainant may request a hearing before an EEOC administrative judge or an immediate final decision by the agency. See id. § 1614.108(f). [6]
Following the conclusion of the agency’s investigation, a complainant may file a civil action if the complaint has been pending before the agency or the EEOC for at least 180 days. See 42 U.S.C. § 2000e–16(c); 29 C.F.R. § 1614.407. Specifically, the statute provides that “after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit . . . , an employee . . . , if aggrieved . . . by the failure to take final action on his complaint, may file a civil action . . . .” 42 U.S.C.A. § 2000e-16(c); see 29 U.S.C. § 794a(a)(1). The implementing regulation provides that a “complainant who has filed an individual complaint . . . is authorized under title VII, the ADEA and the Rehabilitation Act to file a civil action in an appropriate United States District Court . . . (b) After 180 days from the date of filing an individual or class complaint if an appeal has not been filed and final action has not been taken . . . .” 29 C.F.R. § 1614.407.
2. The Plaintiff’s Voluntary Withdrawal from the Administrative Process Does Not Amount to a Failure to Exhaust
The defendant contends that although the plaintiff filed this action in federal court after
the passage of 180 days, she nevertheless failed to exhaust her administrative remedies by
voluntarily withdrawing from her requested administrative hearing. Def.’s Mem. at 7–8, 13. The
defendant is correct that a plaintiff does not have an absolute right to file a claim in Federal court
after the passage of 180 days from the filing of an EEO complaint. Indeed, “[a] plaintiff's suit
‘will be barred for failure to exhaust administrative remedies’ if he ‘forces an agency to dismiss
or cancel the complaint by failing to provide sufficient information to enable the agency to
*17
investigate the claim.’”
Koch v. White
,
In
Wilson v. Peña
, however, the D.C. Circuit stated that “[o]nce a complainant files a
complaint or appeal and cooperates with the agency or EEOC for 180 days, he is not required to
take any further action to exhaust his administrative remedies.”
For example, in
Brown v. Tomlinson
,
see also Payne v. Locke,
The principal justification for permitting suit following the abandonment of the administrative process in these cases is the plain language of the statute. See, e.g. , Payne , 766 F. Supp. 2d at 250–51 (holding that “the plain language of 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.407 . . . allow [the plaintiff] to proceed because more than 180 days elapsed between the filing of his complaint and his allegedly uncooperative behavior relating to the EEOC hearing.”).
Yet, the statutory language is not quite so plain. The statute permits suit after 180 days, only for an employee “ aggrieved . . . by the failure to take final action on his complaint.” 42 U.S.C. § 2000e-16(c) (emphasis added). A party who abandons an administrative proceeding, after formally requesting such a proceeding, is arguably not “aggrieved” by the failure of the agency to take final action. Indeed, the only impediment to the agency’s final action was the plaintiff’s own decision to abandon the administrative process.
Based upon this alternative reading of the statutory language, other Judges on this
Court have viewed the voluntary dismissal of administrative proceedings as fatal to a subsequent
lawsuit. For example, in
Smith v. Koplan
,
Absent from those cases, and from the parties briefing in this case, is any discussion of
McRae v. Librarian of Congress
,
McRae is on all fours with the instant case. The plaintiff cooperated with the EEO investigation (resulting in a complete EEO investigation report), requested an administrative hearing, and subsequently withdrew from the administrative hearing following an adverse procedural ruling. [9] The defendant argues that the plaintiff “did not respond to the Agency’s discovery requests and instead sought a stay of the proceedings” and that the plaintiff “delayed the administrative process while she attempted to negotiate settlement.” See Def.’s Supp. Reply at 9–10. Neither requesting a stay of proceedings nor attempting to negotiate a settlement constitutes bad faith by the plaintiff or non-cooperative conduct, however.
The plaintiff cooperated in the EEO proceedings for more than 180 days and withdrew from her optional administrative hearing in good faith. Thus, the plaintiff’s withdrawal from the administrative process does not amount to a failure to exhaust her administrative remedies. Accordingly, the defendant’s challenge to the entire complaint for failure to exhaust administrative remedies is rejected.
3. Only Plaintiff’s Timely-Filed EEO Claims Will Be Considered
A federal employee who believes that she has been the subject of unlawful discrimination
“must ‘initiate contact’ with an EEO Counselor in her agency ‘within 45 days of the date of the
matter alleged to be discriminatory.’”
Steele v. Schafer
,
The requirement concerning the exhaustion of administrative remedies is less stringent
for hostile work environment claims than for discrete claims of discrimination or retaliation
claims, however. Although, a “plaintiff raising claims of discrete discriminatory or retaliatory
acts must file his charge within the appropriate time,” a hostile work environment claim “will not
be time barred so long as all acts which constitute the claim are part of the same unlawful
employment practice and at least one act falls within the time period.”
Morgan
,
The plaintiff first contacted an EEO counselor on May 7, 2010 and filed her First EEO complaint on July 2, 2010, alleging numerous discrete acts of discrimination between April 2007 and June 2010. Since a plaintiff is required to contact an EEO counselor within 45 days of an alleged discriminatory event, only those events occurring on, or after, March 23, 2010 and included in the plaintiff’s First EEO Complaint have been exhausted and can be considered as part of her discrimination claims in this suit. Thus, the only discrete acts of discrimination that have been timely exhausted from the plaintiff’s First EEO complaint concern whether the plaintiff’s supervisors “(1) questioned/harassed [the plaintiff] about [her] use of the Family Medical Leave Act (FMLA); and (2) denied [the plaintiff’s] request to work from home.” EEO Investigative Report (“EEO Report”), ROI Ex. 5 at 1.
Notably, although the plaintiff now asserts that she was retaliated against for seeking a
reasonable accommodation of her disability in May 2010,
see
Pl.’s Opp. at 26–28, the EEO was
never placed on notice of this claim when investigating the plaintiff’s First EEO Complaint,
which contained only allegations of discrete discrimination.
See
EEO Report at 1. “The
‘theories of discrimination in [a] plaintiff’s lawsuit are limited to the theories contained in the
[administrative EEO complaint] he filed.’”
Koch v. Walter
,
The plaintiff filed her Second EEO Complaint on March 25, 2011, alleging an “ongoing
hostile work environment and discrimination on the bases of retaliation” as a result of sixteen
identified incidents, occurring between August 26, 2010 and March 21, 2011, after the filing of
her First EEO Complaint.
See
Notice of Acceptance of Compl. of Discrimination, ECF No. 9-4.
After a review of the plaintiff’s complaint, the agency “accepted for investigation and further
processing” all sixteen of the alleged incidents. Neither the EEO Complaint nor the Notice
of Acceptance of Complaint of Discrimination indicate whether the plaintiff first met with an
EEO counselor prior to filing suit, as required by regulation.
See
29 C.F.R. § 1614.105(a).
(requiring an employee to “consult a Counselor prior to filing a complaint in order to try to
informally resolve the matter.”). Nor does the plaintiff’s complaint or declaration indicate that
she spoke with an EEO counselor prior to filing her Second EEO Complaint. Compl. ¶ 32
(discussing exhaustion of administrative remedies only as to First EEO Complaint);
see
generally
Pl.’s Decl. The only evidence in the record regarding a discussion with an EEO
*24
counselor refers to a February 2011 incident in which the plaintiff spoke with an EEO official
regarding alternative dispute resolution as it related to the plaintiff’s First EEO Complaint.
See
Second EEO Compl. Yet, it is the plaintiff’s burden under the Rehabilitation Act to plead and
prove exhaustion.
See Spinelli
,
B. The Discrete Discrimination Claim
“Under . . . the Rehabilitation Act, the two essential elements of a discrimination claim
are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff's. . .
disability.”
Baloch v. Kempthorne
,
The Court will therefore address whether a genuine issue of material fact exists as to (1) whether the plaintiff is disabled and therefore covered by the protections of the Rehabilitation Act; (2) whether the plaintiff suffered an adverse employment action; and (3) whether a reasonable jury could find that the defendant’s proffered non-discriminatory reason was not the actual reason for any adverse employment action; or whether, if there are no genuine issues of material fact, the defendant is entitled to judgment as a matter of law.
1. The Plaintiff Is Disabled
As an initial matter, the parties dispute whether the plaintiff is a qualified individual with
a disability and therefore covered under the Rehabilitation Act. “To sustain a disability claim
under the Rehabilitation Act, a plaintiff must as a threshold matter establish that he or she has a
disability.”
Klute v. Shinseki
,
An individual is “disabled” if he or she (1) has a “physical or mental impairment that
substantially limits one or more of [his or her] major life activities,” (2) has “a record of such
impairment,” or (3) has been “regarded as having such an impairment.” 42 U.S.C. § 12102(1);
*26
29 U.S.C. § 705(20)(B); 29 C.F.R. § 1630.2(g). Prior to 2009, the Supreme Court had
interpreted the definition of “disability” narrowly.
See Toyota Motor Mfg., Ky., Inc. v. Williams
,
Congress passed the ADA Amendments Act of 2008 (“ADAAA”) in order to “reinstat[e] a broad scope of protection” and to “reject” the narrow interpretation of disability set forth in Sutton and Toyota . Pub. L. No. 110–325, § 2(b), 122 Stat. 3553, 3554. Under the ADAAA , the definition of “disability” “shall be construed in favor of broad coverage.” 42 U.S.C. § 12102(4)(A). New regulations promulgated to implement the ADAAA likewise provide that the term “substantially limits” is “not meant to be a demanding standard” and “shall be construed broadly in favor of expansive coverage.” 29 C.F.R. § 1630.2(j)(1)(i). “An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” Id. § 1630.2(j)(1)(ii). Additionally, “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of establishing a disability under the ADA. See id. § 1630.2(j)(1)(ix). The impairment need only “substantially limit[ ] the ability of an individual to perform a major life activity as compared to most people in the general population.” § 1630.2(j)(1)(ii).
The regulations likewise give guidance on cases where it “should easily be concluded” that a plaintiff is disabled, including cases where the plaintiff suffers from “major depressive disorder.” 29 C.F.R. § 1630.2(j)(3)(iii). According to the regulations, a plaintiff suffering from *27 “major depressive disorder” is substantially limited in the major life activity of “brain function.” The defendant does not challenge the validity of the regulations and the plaintiff does not argue that the regulations are owed any deference by this Court. Since the plaintiff’s claims fail regardless of the disability determination, the Court will assume, without deciding, that the plaintiff is a qualified individual with a disability as a result of her diagnosed depression.
2. Adverse Employment Actions
The plaintiff’s Complaint identifies numerous actions taken against her by the defendant
from 2007 through 2011.
See
Compl. ¶¶ 7–21. As discussed previously, however, only claims
timely submitted to the EEO have been exhausted and are eligible for review in the instant
action.
See Steele v. Schafer
,
The same standard applies to assessing adverse employment actions under Title VII and
the Rehabilitation Act.
Chambers v. Sebelius
,
An adverse employment action occurs if an employee “experiences materially adverse
consequences affecting the terms, conditions, or privileges of employment or future employment
opportunities such that a reasonable trier of fact could find objectively tangible harm.”
Forkkio v.
Powell
,
The plaintiff alleges that Ms. Smith “harassed” her regarding her use of FMLA, yet offers
no factual support for such a conclusory allegation. Indeed, to the extent the plaintiff has
*29
alleged any facts (as opposed to conclusions) relating to the defendant’s harassment, those facts
evidence only that her supervisors sought additional medical information from the plaintiff to
verify her leave requests. “Generally, requests for medical information do not rise to the level of
an adverse employment action.”
Gordon v. U.S. Capitol Police
,
The plaintiff also alleges that the defendant denied her Flexiplace application because of
discrimination. Generally, “being denied the ability to work from home . . . is a minor
annoyance, not an adverse action.”
Beckham v. Nat’l R.R. Passenger Corp.
, 736 F. Supp. 2d
130, 149 (D.D.C. 2010);
see also Ng v. LaHood
,
3. No Reasonable Jury Could Find that the DOE Discriminated Against the Plaintiff in Denying her Flexiplace Application
The defendant asserts that the plaintiff’s Flexiplace application was denied because her
application was incomplete. Since the defendant has proffered a non-discriminatory reason for
the adverse employment action, the Court must “proceed to the ultimate question of
discrimination
vel non,
”
Wiley v. Glassman
,
In making this evaluation of the defendant’s proffered non-discriminatory reason, the Court looks to the undisputed evidence in the record submitted by the parties and the plaintiff’s own allegations in the Complaint. This evidence shows that several weeks after the plaintiff submitted her Flexiplace application, Ms. Browne informed her that her application was incomplete and required more supporting medical documentation. Pl.’s Aff. at 25; Browne Aff. at 3. Additionally, Ms. Browne has averred that the plaintiff’s application lacked “a plan . . . that would address any dependent care issues as outlined by the Office of Policy and International Affairs’ Handbook for Flexiplace.” Browne Aff. at 3. In response, the plaintiff claims that Ms. Brown had a “responsibility to address the perceived problems [with the application] with the plaintiff,” Pl.’s Resp. Def.’s Statements of Facts (“Pl.’s SMF”) at ¶ 31, ECF No. 14-1, and “violated the Flexiplace policy when Ms. Browne knew there was a problem with the application of [the plaintiff] and failed to raise it to her,” Pl.’s SMF ¶ 33. Yet, the emails submitted by the plaintiff to the EEO demonstrate that Ms. Browne did respond to the plaintiff and did notify the plaintiff of the inadequacy of the submitted documentation. Indeed, Ms. Browne told the plaintiff on July 19, 2010 that the plaintiff’s “flexiplace application is incomplete [because Ms. *31 Browne] did not receive supporting medical documentation.” Pl.’s Aff. at 26. Ms. Browne also supplied the plaintiff with a copy of the Flexiplace policy so that she could be sure to submit all the required materials. Additionally, although the plaintiff claims that she was denied “the option of mediation” to resolve the Flexiplace dispute, see Pl.’s Mem. at 10, the Flexiplace Handbook states that “[e]mployer decisions regarding Flexiplace may be appealed by filing a ‘Step One’ grievance,” which itself “may be appealed to arbitration,” see Flexiplace Handbook at 55. The plaintiff’s own failure to appeal the Flexiplace determination is not evidence of discrimination by her employer. The plaintiff has offered nothing from which a reasonable jury could determine that the defendant’s “asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee.” [10] Brady , 520 F.3d at 494.
C. Retaliation Claim
“To prove retaliation, the plaintiff generally must establish that he or she suffered (i) a
materially adverse action (ii) because he or she had brought or threatened to bring a
discrimination claim.”
Baloch v. Kempthorne
,
In determining what qualifies as a materially adverse action, the Supreme Court has
provided two important guiding principles that are at times in tension with one another. The
Court has made clear that “[t]he antiretaliation provision protects an individual not from all
retaliation, but from retaliation that produces an injury or harm.”
Burlington Northern
, 548 U.S
at 67. In this vein, the Court has said that it “speak[s] of material adversity” because “it is
important to separate significant from trivial harms.”
Id.
at 68. Thus, “petty slights, minor
annoyances, and simple lack of good manners” cannot qualify as materially adverse actions.
Id.
The Court also has similarly emphasized that the standard of material adversity refers to
“reactions of a reasonable employee” because “the provision's standard for judging harm must be
objective” in order to “avoid[ ] the uncertainties and unfair discrepancies that can plague a
judicial effort to determine a plaintiff's unusual subjective feelings.” at 68–69. At the same
time, however, “[g]iven the broad statutory text and the variety of workplace contexts in which
retaliation may occur, [the Rehabilitation Act’s] antiretaliation provision is simply not reducible
*33
to a comprehensive set of clear rules.”
Thompson
,
The plaintiff alleges that Ms. Browne and Mr. Dixon retaliated against her for pursuing her EEO Complaint and, as noted, her First EEO Complaint contained no allegations of retaliation. Second EEO Compl. (“Both [Ms. Brown and Mr. Dixon] have continued to harass, discriminate and reprise against me, since the initial filing of my first Equal Employment Opportunity (EEO) case in early 2010.”). As a result, only those factual allegations post-dating the First EEO Complaint can serve as the basis for the plaintiff’s retaliation claim.
The plaintiff’s Second EEO Complaint provides a litany of grievances over a span of several months following her First EEO Complaint. Specifically, the plaintiff alleges that she (1) received a letter of reprimand, (2) was approached “from behind very abruptly” by her “upset” supervisor and was asked about the status of a report in a “very harsh and angry tone,” (3) was sent an email by her supervisor stating that her work assignment was “straightforward,” and then contradicted the content of the email in a face-to-face meeting, (4) was placed on leave restrictions (hours after declining to mediate her dispute) because she was supposedly “absent and tardy” the prior month, (5) was denied certain leave requests, (6) was denied a union representative during a meeting to discuss the plaintiff’s use of leave (and which the plaintiff believed to be a “disciplinary” meeting), (7) was asked to “walk hard copy” documents to departmental supervisors, (8) was denied a “third party neutral” during a meeting with her supervisor to discuss a work assignment, (9) was counseled by Ms. Browne regarding her use of *34 leave, (10) received “very rude and disrespectful” comments regarding a “brain teaser” she offered during a staff meeting, (11) failed to receive information regarding her work assignment resulting in an “extremely rough estimate of potential hires,” (12) was accused of being “paid to do nothing” in a closed-door meeting, (13) received the lowest performance appraisal in the office, (14) had carts located near her office that were not removed by her supervisors, (15) was told that she was “unprofessional” in her use of the phones, and (16) was told again not to use the phones. Second EEO Compl.
The bulk of the plaintiff’s complaints do not warrant serious analysis but instead
comprise “those petty slights or minor annoyances that often take place at work and that all
employees experience” and to which “[a]n employee's decision to report discriminatory behavior
[will not] immunize.”
Burlington Northern,
“[P]erformance reviews typically constitute adverse actions only when attached to
financial harms.”
Baloch
,
Although the plaintiff’s Second EEO Complaint alleges that she was placed on “leave
restriction,” she does not provide any context regarding the restriction or any evidence to
conclude that it would have dissuaded a reasonable employee from pursuing an EEO claim, as
required.
Burlington Northern
,
Finally, the plaintiff presents evidence that on three occasions her requests for leave
approval were denied. Specifically, the plaintiff’s January 20, 2011 request for several hours of
administrative leave due to elevated blood pressure was denied; her February 1, 2011 request for
thirty minutes of Leave Without Pay was denied; and her January 26, 2011 request for 2.75 hours
of administrative leave was denied.
[11]
See
Second EEO Compl. The plaintiff has not, however,
alleged any financial harm resulting from these denials.
See Morales v. Gotbaum
, No 10-cv-221,
Moreover, even assuming that the plaintiff’s leave restrictions and leave denials could
constitute a materially adverse action, no reasonable jury could find that the denied leave was in
retaliation for the plaintiff filing the First EEO Complaint six months earlier.
[12]
The plaintiff has
offered no facts in support of her contention that the denial was the result of retaliation, let alone
sufficient facts from which a reasonable jury could find that the denied leave requests were the
result of retaliation.
Taylor v. Solis
,
D. Hostile Work Environment Claim
In the employment discrimination context, a work environment is considered “hostile”
when it is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
working environment.”
Oncale v. Sundowner Offshore Servs., Inc.
,
To determine whether a work environment is sufficiently “hostile” to support a claim, the
Court must look at the totality of circumstances, including “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work performance.”
Harris
,
As an initial matter, even assuming the plaintiff exhausted her hostile work environment
claim, not every potential incident of discrimination over the course of her employment can be
considered in evaluating her claim. Under
National Rail Road Passenger Corporation v.
Morgan
,
Applying these principals to the instant case, the plaintiff may not invoke the incidents
described in her Complaint from 2007–2008 in support of her hostile work environment claim.
Therefore, although the plaintiff’s Complaint references her placement on AWOL status, Compl.
¶ 8, her forced removal from the office building,
id.
¶ 16, her months of administrative leave,
id
.,
and her thirty days of unpaid leave,
id.
¶ 17, those incidents will not be considered in evaluating
*40
the plaintiff’s hostile work environment claim. Those events occurred in 2007 and 2008, a full
two years prior to the hostile work events alleged in the plaintiff’s Second EEO Complaint;
occurred under the direction of a different supervisor, since Ms. Browne succeeded Ms. Smith in
2010; and represent wholly different types of employment actions from the grievances described
in the plaintiff’s Second EEO Complaint. Thus, such claims did not “occur frequently,” were not
the same “type of employment action[]” and were not “perpetrated by the same managers.”
Baird
,
While the plaintiff’s work environment was, from her perspective, “hardly ideal” and
“her relationship with her supervisor was strained,” her hostile environment allegations boils
down to “complaints based on a lack of communication with her supervisor, the handling of her
sick leave, and an unsatisfactory performance evaluation.”
Williams v. Spencer
, 883 F. Supp. 2d
165, 181 (D.D.C. 2012). Such “common workplace challenges do not show an environment so
pervaded with discriminatory abuse as to alter the conditions of plaintiff's employment.”
Id..
;
see also Hussain v. Nicholson
, 435 F.3d 359, 366–67 (D.C. Cir. 2006) (affirming summary
judgment for defendant on hostile work environment claim because no reasonable jury could
find a hostile work environment based on a denial of promotion, denial of medical leave, poor
performance evaluations, and threats of termination);
Nurriddin v. Bolden
,
IV. CONCLUSION
The Court holds that the plaintiff’s voluntary withdrawal from the administrative process following more than 180-days of good-faith compliance with the EEO investigation does not preclude a finding that the plaintiff exhausted her administrative remedies. Nonetheless, the Court finds that the plaintiff failed to exhaust her remedies for all discrete discriminatory incidents prior to March 23, 2010 and failed to exhaust her administrative remedies for her retaliation and hostile work environment claims in their entirety. Further, the Court assumes, without deciding, that the plaintiff qualifies for the protections of the Rehabilitation Act and holds that the plaintiff did not suffer an adverse employment action when the defendant made inquiries into her leave requests and that no reasonable jury could find that the defendant discriminated against the plaintiff in denying her Flexiplace application. Finally, even if the plaintiff had exhausted her administrative remedies with respect to her retaliation and hostile work environment claims, the conduct described in the Second EEO Complaint does not amount to retaliation or a hostile work environment.
For the reasons stated above, the defendant’s motion for summary judgment is granted.
An appropriate Order accompanies this Memorandum Opinion.
Date: November 6, 2014
__________________________ BERYL A. HOWELL United States District Judge
Notes
[1] Former Secretary of Energy, Steven Chu, was named as the original defendant in this case. Pursuant to Federal Rule of Civil Procedure 25(d), the Court automatically substitutes his successor, Secretary Ernest Moniz, as the new defendant.
[2] Ms. Browne became Acting Deputy Director of the Office of Resource Management (“ORM”) in January 2010 and the Deputy Director in April 2010, during which period she was supervised the plaintiff. Compl. ¶ 21; Aff. of Lemetia D. Browne (“Browne Aff.”), ROI Ex. 7 at 1.
[3] Todd Dixon became the Director of the ORM in April 2010. Aff. of Todd Dixon (“Dixon Aff.”), ROI Ex. 8 at 1.
[4] After filing the current civil action, the plaintiff filed an additional EEO Complaint, which is not considered here. Pl.’s Decl. at ¶¶ 85–87.
[5] Indeed, the plaintiff was granted four extensions of time to respond to the defendant’s motion in order to “to take statements from witnesses,” Motion for Extension of Time in Which to File Opposition to Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 10, and “complete all of the documents necessary for the opposition, which includes exhibits, responses to Defendant's factual statements, declarations from witnesses, a rule 56(d), Fed. R. Civ. P. declaration and the opposition itself," Motion for Extension of Time in Which to File Opposition to Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 12.
[6] A complainant who receives an adverse final decision from the agency may appeal that decision to the EEOC
within 30 days, or may file a civil action within 90 days. 42 U.S.C. § 2000e–16(c); 29 C.F.R. §§ 1614.402(a)–
1614.407;
see also Wilson v. Peña,
[7]
See Johnson v. Donahoe
, No. 10-386,
[8] In
Bell v. Donley
,
[9] In response to dilatory discovery, the administrative law judge excluded certain pieces of evidence from the plaintiff’s case. Def.’s Supp. Reply at 4.
[10] Additionally, although the plaintiff references a colleague’s statement that the plaintiff was “targeted” because of her emotional responses, those allegations refer to actions taken by Ms. Smith in 2008 that were not exhausted by the plaintiff. Rush Aff. at 2. Actions taken by a different supervisor from a different time period are not enough for a reasonable jury to discount the proffered explanation for the denial of the plaintiff’s Flexiplace application.
[11] It is unclear from the plaintiff’s EEO Complaint whether the January 26, 2011 final leave request was subsequently approved once she provided evidence that her son’s school was delayed. Second EEO Compl. at 5.
[12] The plaintiff filed her First EEO Complaint in July 2010, but the alleged denials of leave occurred in January and February 2011. Even the EEO Investigative Report was completed on December 13, 2010, or more than a month prior to the alleged incidents.
[13] Indeed, the investigative report from the First EEO Complaint shows that the plaintiff took approved leave on January 11, 2010, January 22, 2010, January 27, 2010, January 28, 2010, March 3, 2010, March 17, 2010, March 18, 2010, March 19, 2010, March 23, 2010, March 24, 2010, May 13, 2010, May 20, 2010, May 24, 2010, May 25, 2010, May 26, 2010, May 27, 2010, May 28, 2010, May 31, 2010, June 1, 2010, June 2, 2010, June 3, 2010, June 4,