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July 26, 2004.

MICHAEL O. LEAVITT, Administrator, United States Environmental Protection Agency, Defendant.

The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge


This matter is before the Court on the plaintiff's motion for a preliminary injunction and the defendant's motions to dismiss and for summary judgment. The plaintiff is employed at the Environmental Protection Agency ("EPA") and claims that she has been discriminated against on the basis of disability and in retaliation for pursuing past claims of discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 791 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The plaintiff asks for a preliminary injunction ordering EPA to allow her to work from home, which she considers to be a reasonable accommodation of her disabilities. The defendant counters by arguing that the plaintiff failed to exhaust her administrative remedies and thus cannot prevail on her underlying action and that, in any event, the plaintiff is not disabled and has not been subjected to any adverse employment action.*fn1 For the reasons that follow, the Court will deny the preliminary injunction and the motion to dismiss, but will grant the defendant's motion for summary judgment.


  The plaintiff, Marsha Coleman-Adebayo, Ph.D., holds a doctorate in political science from the Massachusetts Institute of Technology, with a specialization in African and international affairs. She began working for EPA in August 1990, and was employed as an Environmental Protection Specialist in the Office of Prevention, Pesticides and Toxic Substances, Office of Pollution Prevention and Toxics, Pollution Prevention Division, Prevention Analysis Branch during the period relevant to this suit.

  The plaintiff suffers from a variety of ailments, including multiple sclerosis, glaucoma, optic neuritis and hypertension. She claims, with supporting documentation from her doctors, that the stress of working in an EPA facility exacerbates these maladies and causes considerable risk to her health. In 2000, the plaintiff asked EPA to permit her to work from home as an accommodation for these disabilities. After she filed a motion for a temporary restraining order seeking to require EPA to provide her the accommodation, EPA acceded to the request, without acknowledging the validity of her claims, while the parties attempted to negotiate a resolution of the matter. The plaintiff has worked from home since January 2001.

  The plaintiff has alleged several instances of discrimination and retaliation by EPA in five administrative complaints and two lawsuits over the past six years, not including the present action. The complaint most closely related to her current allegations of discrimination is the one she filed on March 2, 2001. In that complaint, she charged that EPA's failure to allow her to work at home and assigning her duties outside her area of expertise constituted disability discrimination and retaliation. Specifically, according to that complaint, the charges were:
Race, color, sex, reprisal, handicap discrimination, hostile work environment when in mid to late October 2000: (1) managers (Dr. MaryEllen Weber and Dr. William Sanders) created a hostile work environment because (a) I filed complaints against the Office of Pollution Prevention and Toxics (b) testified before Congress and (c) won a jury verdict against the Agency (2) Dr. MaryEllen Weber and Dr. William Sanders refuse to provide medical flexiplace or reasonable accommodation for medical conditions. (4) [sic] Dr. Sanders' reply to the letters from the cardiologist was to "suspect" any decision on the cardiologist medical request and (5) Dr. MaryEllen Weber created a memo, retaliatory in nature, indicating that you were not successfully carrying out your current assignment to conduct research in the areas of environmental epidemiology and toxicology (6) given a letter of reprimand out of retaliation for participating in protected activity (7) extension of 120 day detail to office of pollution prevention and toxics (8) additional extension of 120 day detail in February (9) did not receive office equipment agreed to (in order to carry out essential functions of my duties) agreed to [sic] through an out of court agreement between the EPA, Department of Justice and my attorney that I would work at home (see LaFone e-mail message dated 2/27/01). (10) refusal to provide reasonable accommodation for optic neuritis and MS.
EPA Report of Investigation, Exhibit 1-C, Plaintiff's Complaint of Discrimination ("Compl. of Discrim.") filed March 2, 2001 at 4.

  The plaintiff's administrative complaints, including the one excerpted above, were the subject of a protracted mediation that ended after thirty-two months on November 4, 2003, without a resolution satisfactory to either party. Two days later, Ms. Bridget C. Shea, Senior Policy Advisor in the EPA Office of Administration and Resources Management, wrote a letter to the plaintiff, which stated that in light of the unsatisfactory conclusion of the mediation, Dr. Coleman-Adebayo could no longer remain at home and would be required to return to work at an EPA office.

  The plaintiff's attorney notified Ms. Shea on November 18, 2003, that plaintiff intended to bring suit to prevent EPA from ordering plaintiff back to an EPA office. Three days later, Mr. Thomas Murray, the plaintiff's direct supervisor, reassigned plaintiff to a different position in the Office of Cooperative Management, to take effect December 1, 2003. The new position — which would require her to work at an EPA facility, albeit a different office from the one in which she had experienced medical problems in the past — purportedly was developed with the plaintiff in mind. The duties remain undefined at this time, but involve senior policy making and do not encompass a managerial role over other employees. The title seems to have settled on "Program Analyst." The plaintiff alleges that the new position strips her of her union representation in addition to requiring her to work in an environment that will cause her stress, which will trigger health problems. Plaintiff views the timing of the reassignment as an indication that the reassignment was made in retaliation for her planned suit.

  Plaintiff filed this action on November 24, 2003, after being ordered back to work. She moved for a temporary restraining order to prevent EPA from requiring her to work in an EPA facility. In response, EPA agreed to allow her to continue working from home until this Court rules on the motion for a preliminary injunction. On February 13, 2004, the plaintiff filed an administrative complaint alleging disability discrimination and retaliation in the reassignment to her new position. The Court heard argument on the plaintiff's motion for a preliminary injunction, as well as on EPA's motions to dismiss and for summary judgment on April 19, 2004. II. DISCUSSION

  In this lawsuit, plaintiff alleges (1) discrimination in EPA's refusal to accommodate the plaintiff's disabilities, as she requested in her 2001 EEOC complaint, and (2) retaliation in EPA's reassignment of her to the Program Analyst position in November 2003. Failure to provide reasonable accommodations for disabled employees is a violation of the Rehabilitation Act, 29 U.S.C. § 791 et seq. Title VII of the Civil Rights Act prohibits agencies from discriminating against employees for pursuing a good faith, reasonable charge of discrimination, whether the final determination finds discrimination or not. See 42 U.S.C. § 2000e-3(a). EPA offers several defenses. The agency argues that this action should be dismissed for plaintiff's failure to exhaust her administrative remedies, that the plaintiff is not impaired in a major life activity and therefore is not entitled to the protections against disability discrimination, that the plaintiff has not suffered an "adverse employment action," and that the plaintiff was not the subject of retaliation.

  Although the posture of the case is in the form of plaintiff's motion for a preliminary injunction, consideration of EPA's defenses — many of which go to the merits of the dispute — is required at this stage of the litigation for three reasons. First, EPA has moved to dismiss the action. If it is appropriate to grant the motion and dismiss the case, the question of the preliminary injunction need not be reached. Second, EPA has moved for summary judgment. The Court therefore must consider the merits of the suit to determine whether there are genuine issues of material fact and whether it is appropriate to grant judgment for EPA as a matter of law. Third, even if the only issue resolved were whether to grant the preliminary injunction, one crucial factor in determining whether to grant such a motion is the plaintiff's likelihood of success on the merits. See, e.g., Katz v. Georgetown Univ., 246 F.3d 685, 688 (D.C. Cir. 2001).*fn2 It therefore is necessary to determine the strength of the plaintiff's case.

  A. Exhaustion of Administrative Remedies

  EPA argues that this case should be dismissed for failure to exhaust administrative remedies, and that plaintiff's failure to exhaust makes it unlikely that she will prevail on the merits, making the grant of a preliminary injunction inappropriate. The plaintiff contends that her exhaustion of administrative remedies concerning other instances of alleged discrimination — particularly her filing of the 2001 administrative complaint — suffices to comply with the exhaustion requirements of Title VII and the Rehabilitation Act. According to plaintiff, she is exempt from the need to re-exhaust if her current complaint is "like or reasonably related to" a prior administrative complaint. See Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). Because her complaint filed in this Court states nearly identical grounds for believing that she was the subject of discrimination as the grounds stated in the 2001 complaint, plaintiff argues that this lawsuit flows directly from the agency denial of the relief she sought in 2001, and that, with the conclusion of mediation, the administrative process now has been exhausted. Because the current complaint alleges that the plaintiff was retaliated against in part for her filing of the 2001 complaint, plaintiff argues that the claim of recent retaliation is "like or reasonably related to" the 2001 complaint and therefore that no exhaustion is required.

  Concededly, the plaintiff has not gone through the administrative process for the specific events giving rise to this suit. Until February 2004, she had filed no complaint that cited her November 2003 reassignment and the order given to her to report to work at EPA. Ordinarily, this failure would preclude her from bringing suit in court on a discrimination-in-employment claim until the administrative process has come to a conclusion or until 180 days have passed from the filing of the administrative complaint. See 42 U.S.C. § 2000e-16(c) (stating that claimants charging their federal government employer with discrimination under Title VII must ...

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