The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
*fn1 The original complaint named Donald Evans, former Secretary
of Commerce, as the party defendant. The Court substitutes his
successor, Carlos Gutierrez, pursuant to Fed.R.Civ.P. 25(d).
This matter comes before the Court on defendant's motion to
dismiss or, in the alternative, for summary judgment. The
plaintiff alleges that she was denied reasonable accommodations
by her employer pursuant to Title II of the American with
Disabilities Act of 1990, 42 U.S.C. §§ 12131-1265 ("ADA"), and
the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq.
("Rehabilitation Act"). Specifically, she alleges that defendant
delayed in providing her an office with certain specifications
for two years and that defendant has refused to allow her to work
partly from home. Upon consideration of defendant's motion to
dismiss, or, in the alternative, for summary judgment,
plaintiff's opposition and defendant's reply, the Court grants
the motion to dismiss with regard to plaintiff's claims arising
under the ADA, but denies the motion to dismiss or for summary
judgment with respect to plaintiff's claims arising under the Rehabilitation Act. The Court concludes that the
plaintiff has stated a claim under the Rehabilitation Act and
that there are genuine issues of material fact that require
A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)
On a motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure, the Court must
assume the truth of the facts alleged in the complaint and may
grant the motion only if it appears that plaintiffs will be
unable to prove any set of facts that would justify relief. See
Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325 (1991);
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002); Sparrow v. United
Air Lines, Inc., 216 F.3d 1111, 1117 (D.C. Cir. 2000). The
complaint "is construed liberally in the plaintiffs' favor, and
[the Court should] grant plaintiffs the benefit of all inferences
that can be derived from the facts alleged." Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see
Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 374 (D.C. Cir.
2000); Taylor v. FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997);
Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997). While
the complaint is to be construed liberally in considering a
motion to dismiss, the Court need not accept inferences drawn by
plaintiff if those inferences are unsupported by facts alleged in
the complaint, nor must the Court accept plaintiff's legal
conclusions. See Kowal v. MCI Communication Corp.,
16 F.3d at 1276.
Plaintiff filed her disability complaint under two statutes,
the Rehabilitation Act and the ADA. She alleges in a detailed
complaint that she made repeated requests and provided defendant
with documentation to support her requests for accommodation and
that defendant delayed in accommodating one request and refused to
accommodate another. Explicit statutory language excludes the
federal government from coverage under the ADA. See
42 U.S.C. § 12111(5)(B) ("The term `employer does not include the United
States [or] a corporation wholly owned by the government of the
United States."). See also Henrickson v. Potter
327 F.3d 444, 447 (5th Cir. 2003). Because plaintiff is suing Mr.
Gutierrez in his official capacity as the Secretary of the
Department of Commerce, her claim is against the federal
government. Therefore, with respect to plaintiff's claims under
the ADA, the motion to dismiss is granted. Plaintiff has pled
adequate facts, however, that, if true, would entitle her to
relief under the Rehabilitation Act. For this reason, the motion
to dismiss is denied as to those claims.
B. Motion for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment should be granted if the pleadings, depositions, answers
to interrogatories, admissions on file and affidavits show that
there is no genuine issue of material fact in dispute and that
the moving party is entitled to judgment as a matter of law. Rule
56(c), Fed.R.Civ.P. Material facts are those "that might
affect the outcome of the suit under the governing law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
considering a motion for summary judgment, the "evidence of the
non-movant is to be believed, and all justifiable inferences are
to be drawn in [her] favor." Id. at 255; see also Washington
Post Co. v. U.S. Dept. of Health and Human Services,
865 F.2d 320, 325 (D.C. Cir. 1989).
The non-moving party's opposition, however, must consist of
more than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting forth specific facts showing that there is a
genuine issue for trial. Rule 56(e), Fed.R.Civ.P.; Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party
is "required to provide evidence that would permit a reasonable
jury to find" in his favor. Laningham v. U.S. Navy,
813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely
colorable" or "not significantly probative," summary judgment may
be granted. Anderson v. Liberty Lobby, Inc.,
477 U.S. at 249-50.
Defendant claims it is entitled to summary judgment with
respect to plaintiffs' claims for two reasons. First, because it
engaged in the interactive process in good faith, any delay in
providing plaintiff with an office to accommodate her disability
was not unreasonable. See Defendant's Memorandum in Support of
His Motion to Dismiss, or in the Alternative, for Summary
Judgment ("Def.'s Mem.") at 11. Second, plaintiff's request to
telework from home two days out of the work week could not be
reasonably accommodated due to the nature of her essential job
functions. See Def.'s Mem at 15. Plaintiff responds that she
has a witness who can attest to defendant's bad faith in delaying
her accommodation and disputes whether she can perform the
essential functions of her job while telecommuting for part of
the work week.
Reasonable accommodation cases typically are fact intensive.
What constitutes a reasonable amount of time and a reasonable
accommodation varies from case to case and depends upon the
highly specific circumstances under which such requests were made
and under what conditions those requests can be granted. With
this in mind, the Court reviews the pleadings and allegations in
the light most favorable to the non-moving party, the plaintiff.
With respect to plaintiff's first allegation, defendant states
baldly that it provided plaintiff with an office fitting her
requested accommodations in a timeframe in which it was able and
that it did so in good faith. See Def. Mem. at 11. See also
Defendant's Reply in Support of His Motion to Dismiss or in the
Alternative, for Summary Judgment ("Def.'s Reply") at 2-3.
Defendant blames any delay in providing plaintiff with the
accommodation on her failure to provide adequate medical
documentation. See Def's Mem. at 14. Plaintiff responds that
she provided adequate documentation and that her supervisors
deliberately delayed accommodating her by requesting additional
and unnecessary documentation. See Plaintiff's Brief in
Opposition to Defendant's Motion to Dismiss or, in the
Alternative, for Summary Judgment ("Pl.'s Opp.") at 8-10. She
further alleges that she has a witness who can support her
allegations that defendant acted in bad faith and tried to
undermine her accommodation request by asking a medical doctor to
find another doctor who would contradict the office
recommendation. See Pl.'s Opp. at 10. Where the truth lies is a
matter for discovery and trial.
With respect to plaintiff's second allegation, that she has
been denied the opportunity to telework two days a week from
home, defendant provides an affidavit from plaintiff's superior
asserting that she would not be able to perform two of the
essential functions of her job from home; therefore, it is not
reasonable to accommodate her request. See Def.'s Mem. at 15-17
and at Exhibit 6. Specifically, plaintiff's supervisor states
that plaintiff will not have access to a certain computer
database from home and that she will not be able to hold
face-to-face meetings with certain other employees from home.
See Def's Mem at Exh. 6 ¶ 4-11. This logic is unconvincing. One
of the essential functions for a surgeon is certainly to perform
surgery. Were a surgeon to schedule his week so that he spent one
day at his office examining patients, two days at home reviewing
charts, and two days in the surgical theater operating, one could not state that he was
failing to fulfill the requirements of his job simply because he
was not performing one of its essential functions on three out of
five days of the work week. Indeed, plaintiff responds in her
opposition that much like the hypothetical surgeon who does not
perform every essential function of his job every day of the
week, she too can perform the essential functions of her job
while telecommuting and describes how she can do so. See Pl.'s
Opp. at 14-15.
The bottom line is that the determinations of whether defendant
deliberately delayed providing a necessary accommodation and
whether plaintiff's position can be performed by an employee who
telecommutes part of the week are material facts in this case.
Because of the existence of these and other genuine ...