The opinion of the court was delivered by: James Robertson United States District Judge
Plaintiff sues under the Civil Rights Act of 1964 for racial discrimination and retaliation, the Age Discrimination in Employment Act for age discrimination, and the Rehabilitation Act of 1973 for refusing to accommodate his claimed disability and for terminating his employment. Both parties have moved for summary judgment, and Mr. Battle has moved for sanctions and civil contempt. For the reasons set forth below, The FAA's motion for summary judgment must be granted. Mr. Battle's motions for summary judgment, sanctions, and contempt will be denied.
Mr. Battle began working at the FAA in 1973 as an electronics technician. He was transferred to FAA headquarters in Washington, D.C. in 1990. Between 1992 and 1996, he filed several EEOC complaints claiming racial discrimination. In July 1998 he entered a settlement agreement with the FAA to settle some of his EEO claims.
Mr. Battle claims he suffered a workplace injury on August 4, 1998, upon receipt of a letter from the head of the FAA Office of Civil Rights.*fn1 He left work the following day after submitting a leave slip that included a request for administrative leave, Def. Ex. 2 ¶¶ 13-15. The requested leave was granted, Def. Ex. 2, Attach. 3 ¶ 12, and Mr. Battle then began to undergo treatment with a therapist who diagnosed him with generalized anxiety disorder "causally related to the work environment." Pl. Ex. 8. According to the therapist, Mr. Battle's condition would not stabilize unless he could return to a "totally different" work environment. Pl. Ex. 9. The therapist sent several letters to the FAA chronicling Mr. Battle's condition and prognosis.*fn2 On May 20, 1999, Mr. Battle's attorney requested that he be transferred to a different location as a reasonable accommodation of his asserted disability, Def. Ex. 2 ¶ 43, Attach. 15, attaching another letter from the therapist, dated May 19, 1999, which stated that Mr. Battle's anxiety was a conditioned response triggered by being around his supervisors "due to adversarial relationships established during litigation and EEO complaints." Def. Ex. 2, Attach. 16. In a subsequent letter dated June 10, 1999, the attorney restated the request for accommodation as a request that Mr. Battle be moved to a different building. Pl. Ex. 2 ¶ 52.
Much of this letter-writing occurred after Mr. Battle had essentially abandoned his job. His supervisor had directed him to return to work on February 16, 1999. Mr. Battle complied, but two days after his return he requested further leave, which the FAA also granted. Def. Ex. 2 ¶ 31. Mr. Battle never again returned to work, and the FAA terminated his employment on February 20, 2000, citing as its reasons his unavailability to perform the duties of his position and his inability to perform the essential functions of his position. Def. Ex. 2 ¶¶ 66-67.
One of the reasons why the defendant's motion for summary judgment will be granted, but not the only reason, is that Mr. Battle has not complied with rules of procedure that require a party opposing a motion for summary judgment to set forth specific facts showing that there is a genuine issue for trial, and, in this Court, to file a statement of genuine issues of material fact that he asserts are disputed. Fed. R. Civ. P. 56(e); LCvR 7(h); see Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145 (D.C. Cir. 1996).
Nor has Mr. Battle complied with the requirements of Rule 56(f). He has moved for contempt and for sanctions under Fed. R. Civ. P. 37, claiming, inter alia, that "'facts essential to justify' the [sic] his case in chief, Fed.R.Civ.P. 56(f), are within the control of the FAA and have not been produced pursuant to lawful and reasonable discovery requests previously filed . . . ," Pl. Mem. in Support of Civil Contempt and Sanctions Order 6, but he has ignored Rule 56(f)'s requirement of an affidavit setting forth "what facts he intended to discover that would create a triable issue and why he could not produce them in opposition to the motion," Byrd v. U.S. EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999); see King v. United States Dep't of Justice, 830 F.2d 210, 232 n.157 (D.C. Cir. 1987); Strang v. U.S. Arms Control and Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989).
The Rehabilitation Act forbids discrimination against a "qualified handicapped person" 45 C.F.R. § 84.4(a). A "handicapped person" is one who "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." Id. at § 84.3(j)(1). "[M]ajor life activities" are "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."
Id. at § 84.3(j)(2)(ii). A "qualified handicapped person" is one "who, with reasonable accommodation, can perform the essential functions of the job in question." Id. at § 84.3(k)(1). Recipients of federal funds must reasonably accommodate "the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program." Id. at § 84.12(a).
The McDonnell Douglas burden-shifting algorithm developed for Title VII applies equally in Rehabilitation Act cases. Barth v. Gelb, 2 F.3d 1180, 1185 (D.C. Cir. 1993) ("courts allocating burdens of proof under the Rehabilitation Act have been prone to adapt and employ the familiar principles of McDonnell Douglas as elaborated by Burdine").*fn3 In order to trigger it, a plaintiff must show 1) that he is handicapped within the meaning of the Act, 2) that he was qualified to perform his duties with or without a reasonable accommodation, 3) that he worked for a program or activity that received federal financial assistance, and 4) that he endured an adverse employment action at the hands ...