Opinion
Civil Action No. 02-1268 (RWR).
March 31, 2005
MEMORANDUM OPINION
In this employment discrimination case, plaintiff, proceeding pro se, alleges that defendant discriminated against her based on her disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Defendant moves to dismiss or for summary judgment. Upon consideration of the parties' submissions and the voluminous record, the Court will grant defendant's motion for summary judgment.
Plaintiff voluntarily dismissed claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Amended Complaint at 2. To the extent plaintiff is complaining about the administrative processing of her complaint, see id at 4-6, Title VII does not provide for an independent cause of action arising therefrom. See Carter v. Greenspan, 304 F. Supp.2d 13, 31 (D.D.C. 2004) (citing Nelson v. Greenspan, 163 F. Supp.2d 12, 18 (D.D.C. 2001)).
In distilling the facts and claims, the Court has liberally considered together plaintiff's filings, namely, the original Complaint [Dkt. No. 1], the Amended Complaint [Dkt. No. 81], A More Definite Statement [# 17], her 65-page Affidavit (Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Deft's Mem."), Ex. 9 ("Brown Aff.")), and Plaintiff's Factual Background in Opposition to the Defendant's Motion for Summary Judgment [Dkt. No. 82].
I. BACKGROUND
In May 1997, plaintiff was hired by the Smithsonian Institution as a Grade 12 personnel management specialist "under Schedule A 213.3102 U, an appointment specifically for individuals who are severely handicapped." Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Deft's Mem.") at 3. Plaintiff alleges that her "letter of eligibility spelled out the kind of accommodation [she] needed which was to avoid jobs that required heavy lifting and to be allowed to sit and stand intermittently." Plaintiff's More Definite Statement at 4. The events forming the basis of the complaint appear to have begun on December 16, 1997, when plaintiff injured her back while moving computer monitors and boxes of books to make room for work space. Plaintiff claims that despite her restrictions against heavy lifting, she had no choice but to move the items because no one else was available to move them and she needed a place to work. See id. at 11-12. Plaintiff alleges that on December 17 following a doctor's appointment, she informed her supervisor that her doctor told her that she "would need extensive treatment, physical therapy and a chair with lumbar support." Deft's Mem., Ex. 9 ("Brown Aff.") at 6, ¶ 7. Plaintiff was provided workers' compensation and placed on partial disability from December 15, 1997 through January 9, 1998. She was placed on total disability from January 9 through January 24, 1998. When she returned to work in late January, plaintiff alleges that her supervisor, Chet Henderson, refused her request for a chair with lumbar support. Id. at 11, ¶ 14. The chair provided her caused "excruciating pain." Id. After allegedly threatening Henderson with a lawsuit, plaintiff received a chair on February 10 that enabled her "to work a full day almost pain free." Id. at 12, ¶ 13. Plaintiff alleges that after filing EEO charges beginning in December 1997, defendant, primarily through Henderson, subjected her to a hostile work environment.Effective February 1, 1998, plaintiff was removed from an alternative (flexible) work schedule. Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Deft's Mot."), Defendant's Statement of Material Facts With Respect to Which There is No Genuine Dispute ("Deft's Facts") ¶ 2. On July 2, 1998, plaintiff was suspended without pay for three days because of "insolent conduct." Deft's Mem., Ex. 18. On September 15, 1998, plaintiff was placed on leave restriction for six months. Deft's Facts ¶ 3. On November 9, 1998, plaintiff was suspended without pay for seven days for failure to follow leave procedures and for being absent without leave ("AWOL") for a little over six hours," id. ¶ 4, and, on December 29, 1998, plaintiff was suspended for fourteen days for failure to follow leave procedures and for being AWOL for a little over 84 hours. Id. ¶ 5. On March 24, 1999, defendant informed plaintiff of its decision to remove her effective April 2, 1999. Deft's Ex. 17. Her removal was held in abeyance pending the outcome of her application for disability retirement, which plaintiff alleges she was forced to file as a result of the hostile work environment. Plaintiff's application was approved, and she retired on disability effective June 5, 1999.
II. DISCUSSION
Summary judgment is appropriate where the record shows that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment must provide the district court with a factual record sufficient to demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party may support its motion successfully if it "`inform[s] the district court of the basis for its motion, and identif[ies] those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C. Cir. 1988) (citing Celotex, 477 U.S. at 323 (quoting Fed.R.Civ.P. 56(c)). In this case, the Court must determine whether defendant, as the movant, has provided sufficient evidence that no dispute exists concerning those facts relevant to assessing plaintiff's claim under the Rehabilitation Act.
1. Disability Discrimination Claim
The Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability . . . be subjected to discrimination . . . by any Executive Agency." See 29 U.S.C. § 794(a). The language "solely by reason of" requires plaintiff to establish a "causal link . . . [that] the employer . . . acted with an awareness of the disability itself." Crandall v. Paralyzed Veterans of America, 146 F.3d 894, 897 (D.C. Cir. 1998). The standards for determining a violation are the same as those applied under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. See 29 U.S.C. § 794(d). In order to prove a violation of the ADA, the alleged discrimination "must occur in regard to some adverse personnel decision or other term or condition of employment." Marshall v. Federal Express Corp., 130 F.3d 1095, 1099 (D.C. Cir. 1997). To establish a prima facie case of discrimination based on failure to accommodate, plaintiff must show that (1) she is disabled within the meaning of the Act; (2) her employer was aware of her disability; (3) with reasonable accommodation she could perform the essential functions of the position; and (4) she was denied a reasonable accommodation. Scarborough v. Natsios, 190 F. Supp. 2d 5, 19 (D.D.C. 2002) (citations omitted).
An adverse employment action is one that resulted in a "diminution in pay or benefits [or] `some other materially adverse consequences affecting the terms, conditions, or privileges of her employment . . . such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.'" Bailey v. Henderson, 94 F. Supp. 2d 68, 72 (D.D.C. 2000) (quoting Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)); see also Currier v. Postmaster, 304 F.3d 87, 89 (D.C. Cir. 2002) ("[T]he employee must be worse off after the personnel action than before it; otherwise, he has suffered no objectively tangible harm"); Brodetski v. Duffey, 141 F. Supp. 2d 35, 42-47 (D.D.C. 2001) (finding no adverse employment actions from, inter alia, decisions denying an employee's requests for administrative leave, alterations to work schedule, and choice of workspace, and the employer's refusal to intervene in several incidents of alleged co-worker harassment, uneven redistribution of work assignments, and negative criticism).
Defendant argues that plaintiff has failed to establish that she was disabled within the meaning of the statute. Deft's Mem. at 20-24. The Rehabilitation Act defines a disability as a "physical or mental impairment that substantially limits one or more major life activities." 29 U.S.C. § 705(9)(B). "Major life activities" are defined by regulation as "functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). The Act's terms are "interpreted strictly to create a demanding standard for qualifying as disabled." Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002). In analyzing the issue, the Court must "ask whether [plaintiff's] impairments prevented or restricted her from performing tasks that are of central importance to most people's daily lives." Id. at 187.
Although the Toyota case involved ADA claims, the Supreme Court looked to the regulations interpreting the Rehabilitation Act as one of "two potential sources of guidance. . . ." Toyota, 534 U.S. at 193.
Plaintiff has withdrawn her claim that she was substantially limited in working. See Amended Complaint at 8. She claims to suffer from "fibromyalgia which is a chronic illness that causes pain in the joints, muscles, tendons, and other soft tissues. It is also characterized by diffuse excruciating body wide pain, stiffness and severe fatigue." Id. Plaintiff asserts that this condition and "associated" illnesses, id. at 9, substantially limits her in "the major life activities of sleeping, running, standing, walking, sitting, lifting, carry[ing] things, climbing steps and elimination," id., and of maintaining "balance or staying up right . . . due to my impairment disequilibrium which [is] another impairment that exist[s] co-morbidly with fibromyalgia." Id. at 11. Plaintiff claims that although fibromyalgia "is difficult to diagnose and until recently little was know[n] about it," id. at 8, she has suffered from its effects for ten years. Id. at 10. In addition, plaintiff claims to suffer from depression "dating back to 14 years of age," which substantially limits her ability to concentrate and to tend to her personal care needs. Id. at 11. She claims to have suicidal thoughts that require treatment and "sometimes" hospitalization. Id.
The Court will assume that plaintiff has established that she is physically disabled under the statute. The Court need not reach the more difficult question of whether plaintiff was a qualified individual because her claim fails on the second and fourth elements of a prima facie showing. Plaintiff has not provided any evidence that at the time of the adverse decisions, namely, her suspensions without pay effective July 2, 1998 (for three days), November 9, 1998 (for seven days), and December 28, 1998 (for fourteen days), defendant was aware of any physical limitations and failed to reasonably accommodate her. To the contrary, plaintiff's Schedule A appointment revealed no physical disabilities and plaintiff admits that in late October 1997, she told her supervisor who had specifically asked "how [she] was doing and if [she] needed any type of accommodation" that she needed no accommodation. Brown Aff. at 5, ¶ 5. She told him that she had "a little trouble with my sleep/wake cycle but that it had gotten better recently and that I needed no accommodation at this time." Id. Plaintiff admits that she requested an alternative work schedule, which was granted. Id. Plaintiff also admits that she was accommodated for her back injury sustained in December 1997 when she received a chair with lumbar support "around February 10." Id. at 12, ¶ 14. It is not apparent from the allegations in plaintiff's submissions what, if any, other accommodations she required for her physical limitations set forth in the amended complaint. Plaintiff therefore has failed to create a genuine issue of material fact with respect to the agency's otherwise appropriate responses to her physical disabilities.
Plaintiff appears to assert that Henderson's negative performance evaluation of her during a counseling session in February 1998, see infra at 10, was an adverse employment action, but she has presented no evidence from which a trier of fact could reasonably find that the evaluation caused her "objectively tangible harm." Brown v. Brody, 199 F.3d at 457-58 (citing cases "refut[ing] the notion that formal criticism or poor performance evaluations are necessarily adverse actions").
Henderson avers, apparently about the interview process, that he "knew [plaintiff] had a disability, which was in remission, although I did not know what it was . . . I believe it might have been lupus." Deft's Mem., Ex. 2, Affidavit of Chester Henderson ("Henderson Decl.") at 1, ¶ 3.
Plaintiff suggests that the agency outright refused her request, but the record establishes otherwise. Plaintiff alleges that from December 17, 1997 to January 27, 1998, she "made numerous requests" for the support chair. Brown Aff. at 14. It appears that the agency's delay in providing the chair was attributable to steps taken to determine the appropriateness of the request and plaintiff's own actions. During plaintiff's absence on disability leave, the agency considered her request as part of its ergonomic survey. It inspected the chair the agency had originally proposed for her use to determine if it was "a suitable orthopedic chair." It was suggested that plaintiff be consulted before ordering a chair. After talking with plaintiff upon her return from disability leave, the agency determined that "she had a need for the special chair she had requested and immediately ordered it." Henderson Decl. at 3 ¶ 7; see also Deft's Mem. Ex. 11, Declaration of Susan Stockwell at 3 ("After I got a copy of [plaintiff's] doctor's certificate . . . I ordered the chair Ms. Brown had requested. I then found out that Ms. Brown had already ordered and had told the vendor that we would pay for it. This delayed delivery of the chair.").
Plaintiff appears to claim that her mental impairment of severe depression substantially limited her in performing the major life activities of working (which she has withdrawn) and caring for herself. As it did with the physical impairments, the Court will assume that plaintiff has established that she is disabled under the statute, but will not address whether she was a qualified individual with a disability because the claim fails on the notice requirement.
The Rehabilitation Act protects an employee from discrimination only when it is shown that the employer acted with "an awareness of the disability itself, and not merely an awareness of some deficiency in the employee's performance that might be a product of an unknown disability." Crandall v. Paralyzed Veterans of America, 146 F.3d at 897. "Reports about which the defendant employer had absolutely no knowledge nor access prior to [acting] cannot serve as the sole evidentiary basis of establishing an element of a prima facie case of disability discrimination." Weigert v. Georgetown University, 120 F. Supp. 2d 1, 8 (D.D.C. 2000). "An underlying assumption of any reasonable accommodation claim is that the plaintiff-employee has requested an accommodation which the defendant-employer has denied." Flemmings v. Howard University, 198 F.3d 857, 861 (D.C. Cir. 1999).
Defendant claims that it did not know about plaintiff's depression until receiving her memorandum to Henderson dated October 29, 1998. See Deft's Mem., Ex. 3; Henderson Decl. at 1, ¶ 3 ("[Plaintiff] should have informed [the agency during the interview process] that she also had a mental disability and was mentally restored so that we could have considered this factor accordingly in the selection process"). Plaintiff has proffered no evidence to the contrary. The events leading up to the suspensions occurred well before October 29. Effective February 1, 1998, the agency removed plaintiff from an alternative work schedule ("AWS") to a standard work schedule because of concerns about her "productivity related to [her] AWS, as well as other scheduled and unscheduled leave impacting [her] attendance." Deft's Mem., Ex. 24. On June 1, 1998, Henderson recommended the three-day suspension because of plaintiff's "insolent conduct on May 12, 1998" toward another employee. Deft's Mem., Ex. 18 at 3. The recommendation was adopted on July 2, 1998, and plaintiff was suspended without pay from July 10 through July 12. Effective September 15, 1998, the agency placed plaintiff on leave restriction for six months based on "earlier conversations" between plaintiff and her supervisor and the supervisor's "expressed concerns about [plaintiff's] pattern leave usage." Deft's Mem., Ex. 16. Over the course of eight months, plaintiff had used 262.25 hours of unscheduled leave. Id. Plaintiff was suspended twice again, in November and December of 1998, for failing to follow leave procedures and for being AWOL. See Deft's Mem., Exs. 19, 21.
On the AWS, plaintiff worked "45 hours one week and 44 hours the next while taking one day off. . . . By taking her off AWS[,] it meant she did not have the guaranteed extra day off every two weeks and that would be one more day I would expect her to be at work. Taking her off AWS was a management prerogative." Henderson Decl. at 6, ¶ 18.
Given plaintiff's dubious work record, the documented evidence of progressive discipline, and the lack of any evidence that the decision-maker was aware of plaintiff's depression before initiating the series of proposals to suspend her without pay, no reasonable juror could find that the suspensions occurred "solely" because of plaintiff's mental or physical impairments. The Court will grant summary judgment to defendant on plaintiff's disability discrimination claim.
2. Hostile Work Environment Claim
Plaintiff alleges that she was subjected to a hostile work environment. She also appears to assert that the work environment led to her decision to retire on disability, amounting to a constructive discharge claim. Whether the Rehabilitation Act provides a cause of action for a hostile work environment is not definitively decided. See Kuraner v. Mineta, 2001 WL 936369 (D.C. Cir. 2001) (assuming, without deciding, that the claim exists); see also Walton v. Mental Health Ass'n of Southeastern Pennsylvania, 168 F.3d 661, 667, n. 2 (3d Cir. 1999) (citing cases where courts have proceeded on the same assumption). Title VII, from which the Rehabilitation Act emanates, forbids employers from creating a workplace sufficiently abusive to affect a "`term, condition, or privilege' of employment." Davis v. Coastal Intern. Sec. Inc., 275 F.3d 1119, 1122 (D.C. Cir. 2002). "A claim for harassment based on disability, . . . would require a showing that: (1) [plaintiff] is a qualified individual with a disability . . .; (2) she was subject to unwelcome harassment; (3) the harassment was based on her disability or a request for an accommodation; (4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive working environment; and (5) that [defendant] knew or should have known of the harassment and failed to take prompt effective remedial action." Walton v. Mental Health Ass'n of Southeastern Pennsylvania, 168 F.3d at 667. In reviewing this claim, the Court must consider the totality the 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 v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). "[C]ourts are without authority to `second-guess an employer's personnel decision absent demonstrably discriminatory motive.'" Waterhouse v. District of Columbia, 298 F.3d 989, 995 (D.C. Cir. 2002) (quoting Fischbach v. District of Columbia Dep't of Corr., 86 F.3d 1180, 1182 (D.C. Cir. 1996)) (other citation omitted).
Plaintiff's harassment claim appears to stem from Henderson's counseling session in February 1998 in which plaintiff "was told that [she] had no visible work product and that for this reason [her] performance was at issue [and that her] attendance record was poor which was an indication of a conduct problem." Complaint at 5 (internal quotation marks omitted); see also Henderson Decl. at 5, ¶ 15. Plaintiff alleges that Henderson harassed her by monitoring her work closely, talking to her in a derogatory manner during meetings, and rescinding her alternative work schedule. Complaint at 5. She alleges that "[t]his was the situation in my office during May 1998. I was taunted and harassed by [Henderson] on a daily basis and had little control over my work." Amended Complaint at 7. Plaintiff appears to claim that a proposed three-day suspension on June 1, 1998 (and her eventual suspension from July 10-12) was harassment. Complaint at 7. Henderson agrees that after the February meeting, he "began to monitor Ms. Brown's work closely and to attend meetings . . . with her because she could not handle the work." Henderson Decl. at 6, ¶ 19. He also admits that he rescinded her alternative work schedule, which "was a management prerogative." Id., ¶ 18.
As with the discrimination claim, plaintiff's harassment claim fails because no reasonable individual could find a causal link between the alleged harassment and the disability where the harassment is alleged to have occurred before defendant received notice of the disability. Plaintiff claims that she asked repeatedly "for reassignment because of the harassment and also as an accommodation. These request[s] were denied citing business necessity." Amended Complaint at 7. Plaintiff has provided no time frame for her requests. In a supplement to her More Definite Statement, Dkt. # 19, plaintiff states that she "asked Bernice Abrams, my second line supervisor for a reassignment away from the harasser, my supervisor Chet Henderson," but, even if true, plaintiff does not provide any evidence that Abrams was authorized to make such a decision. She therefore has failed to provide any competent evidence to refute defendant's evidence that it first received notice about plaintiff's mental disability and request for accommodation for liberal leave through plaintiff's memo to Henderson dated October 29, 1998. See Deft's Mem. at 32 (citing Ex. 3).
Even if defendant had sufficient notice of plaintiff's mental disability, the claim would fail because no reasonable individual could find from the allegations that Henderson's alleged conduct was sufficiently severe or pervasive as to have created a hostile or abusive work environment. Plaintiff's examples of the alleged taunting and derogatory statements, see More Definite Statement at 75-81, do not come close to the type of conduct rising to the level of a hostile or abusive work environment. See, e.g., Richard v. Bell Atlantic Corp. 209 F. Supp. 2d 23, 35 (D.D.C. 2002) ("rude 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") (citing Barbour v. Browner, 181 F.3d 1342, 1348-49 (D.C. Cir. 1999)). Rather, they "amounted to little more than everyday workplace disputes" that, while unpleasant, are insufficient to sustain a hostile work environment claim. Brodetski v. Duffey, 141 F. Supp. 2d 35, 49 (D.D.C. 2001). The record establishes Henderson's conduct as nothing more than a supervisor's reasonable responses to his employee's questionable performance. The Court will grant summary judgment to defendant on the hostile work environment claim and, to the extent it is preserved, the constructive discharge claim.
"To establish a claim for constructive discharge, the plaintiff must not only show discrimination but also that the employer deliberately made work conditions intolerable, leading the employee to quit involuntarily." Katradis v. Dav-El of Washington, D.C., 846 F.2d 1482, 1485 (D.C. Cir. 1988) (internal citation and quotation marks omitted).
3. Retaliation Claim
Retaliation actions in employment discrimination cases are governed by the procedural framework established in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Brown v. Brody, 199 F.3d 446, 452-53 (D.C. Cir. 1999). Plaintiff first must establish a prima facie case of retaliation. If plaintiff succeeds, defendant may rebut plaintiff's prima facie case by disputing the facts or by offering a "legitimate, nondiscriminatory reason" for their actions. McDonnell Douglas, 411 U.S. at 802; accord Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). If defendant sets forth a successful rebuttal, plaintiff must prove that the reasons defendant offered for its actions were merely pretextual. McDonnell Douglas, 411 U.S. at 804. This burden shifting framework, initially established to cover private discrimination claims under Title VII, also applies to federal employees claiming retaliation. See, e.g., Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (holding that federal government employee successfully established prima facie case of retaliation under McDonnell Douglas but failed to prove employer's proffered reason was pretextual); accord Brown v. Brody, 199 F.3d at 425.To establish a prima facie case of retaliation, plaintiff must show that (1) she engaged in activity protected by Section 704(a) of Title VII, (2) she suffered an adverse job action as a result, and (3) a causal link exists between the employment action and the protected activity. See Mitchell v. Baldridge, 759 F.2d at 86; Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1423 (D.C. Cir. 1988); Ferguson v. Small, 225 F. Supp. 2d 31, 36-37 (D.D.C. 2002). Causation may be established by showing that "the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Mitchell v. Baldrige, 759 F.2d at 86; see also Cones v. Shalala, 199 F.3d 512 (D.C. Cir. 2000) (strong timing evidence alone is sufficient to show a causal connection). "Temporal proximity is often found sufficient to establish the requisite causal connection" for retaliation claims. Gleklen v. Democratic Congressional Campaign Committee, Inc., 199 F.3d 1365, 1368 (D.C. Cir. 2000).
Plaintiff filed five EEO complaints, Deft's Mem. at 34, and plaintiff's three suspensions without pay constituted adverse job actions. Plaintiff has provided no evidence, though, that reasonably links her suspensions with her EEO activity. In any event, she has not rebutted with any competent evidence defendant's legitimate non-discriminatory reasons for the suspensions. Plaintiff has "offered nothing [in rebuttal] beyond her own speculations and allegations." Brown v. Brody, 199 F.3d at 458. She therefore has failed to create a genuine issue of material fact on defendant's legitimate non-discriminatory reasons for the suspensions. See id. at 459 (finding "a plaintiff's mere speculations insufficient" to avoid summary judgment in the face of the defendant's legitimate non-discriminatory reasons for its decisions) (citation omitted). The Court therefore will grant summary judgment to defendant on this claim.
Plaintiff filed EEO complaints on February 9, 1998, June 12, 1998, October 21, 1998, November 25, 1998, and July 13, 1999. See Deft's Mem., Exs. 4-7.
III. CONCLUSION
For the preceding reasons, the Court grants defendant's motion for summary judgment on all claims. A separate Order accompanies this Memorandum Opinion.