The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Jill Thompson, a Department of State employee serving in the Foreign Service, brings this action against the Secretary of State alleging discrimination on the basis of disability in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et. seq. Plaintiff asserts that defendant failed to provide a reasonable accommodation for her disability, and also that defendant did not select her for two overseas job positions because of her disability. Defendant has moved for summary judgment on both claims. For the reasons explained below, the Court grants defendant's motion for summary judgment.
Plaintiff Jill Thompson is a Certified Public Accountant (CPA) with a master's degree in accounting who has been employed by the State Department since 1990. After serving overseas at Foreign Service postings in Bangladesh, the Dominican Republic, Russia, and Thailand, in October 2000 plaintiff began a two-year tour of duty in Washington, D.C., in the Office of International Financial Services ("IFS") in the State Department's Bureau of Financial Management Policy ("FMP"). On September 25, 2001, plaintiff was hospitalized and diagnosed with a Grade 1 subarachnoid brain hemorrhage (hereinafter "hemorrhage" or "SAH").*fn2 In a memo to "Plaintiff's employer" dated October 22, 2001, plaintiff's neurologist indicated that plaintiff could resume normal work duties; however,he advised that she avoid a "hostile work environment" and undue stress. In a subsequent memo dated November 16, 2001, also signed by plaintiff's doctor, defendant was informed that plaintiff "must be allowed to manage levels of stress and hypertension associated with the workplace."*fn3
Upon plaintiff's return to work in early November, she was placed on a "detail" that was originally intended to last for two weeks, but instead extended until sometime in May 2002. During the time she was on detail, plaintiff was located in the Human Resources office. Plaintiff complained to defendant about a lack of structure and supervision in her position and job assignments while on this detail.
On January 16, 2002, plaintiff filed a grievance with the State Department alleging abusive treatment byco-workers in IFS dating back to early 2001. The grievance focused on her co-workers' allegations of an improper relationship between plaintiff and her supervisor and on the subsequent administrative investigation.*fn4 Around this same time in "early 2002," plaintiff began suffering from persistent fatigue and anxiety. Dr. Oraee prescribed Provigil for the fatigue and Zoloft for the anxiety disorder starting in February 2002.
On February 22, 2002, plaintiff contacted Barbara Pope of the State Department's Office of Civil Rights, asking for assistance in resolving her work assignment issues. Plaintiff agreed to provide documentation to the Office of Medical Services ("OMS"), including her medical records. However, on March 15, 2002, Ms. Pope informed plaintiff in writing that the grievance she had filed in January precluded the Office of Civil Rights from assisting her further. On March 21, 2002, plaintiff submitted a medical questionnaire requesting "support" in carrying out her doctor's instructions in the upcoming bidding cycle for foreign service assignments.
Plaintiff remained on the detail assignment, without a position description, work requirements, or a designated rating official, until May 2002, when she applied for and received a temporary six-week assignment in Berlin. During her time in Berlin, plaintiff was accompanied by either her husband or her parents. Plaintiff worked full 40-hour weeks while in Berlin. After her return, plaintiff worked as a recruiter in Human Resources.
In preparation for the fall 2002 bidding cycle, plaintiff discussed her medical condition with the Office of Medical Services and received verbal approval for several overseas postings. Subsequently, plaintiff sought overseas Foreign Service positions in Frankfurt, Germany and Paris, France, two of the locations for which she had received verbal clearance. In November 2002, plaintiff's medical clearance was upgraded to Class 2 (limited clearance for overseas posts).
Plaintiff was not selected for either the Frankfurt or Paris positions. In response to her inquiries, plaintiff was told that the Frankfurt position required a Class 1 medical clearance because it was a "rover" position that involved significant travel, including travel to some remote posts in Europe. Plaintiff was also told that another qualified person was chosen for the Paris po s i t i o n . . On March 7, 2003, plaintiff filed a formal complaint of disability discrimination with the State Department's Office of Civil Rights. Her complaint was denied on July 2, 2003 on the ground that plaintiff had already pursued substantially similar issues under negotiated grievance procedures. Plaintiff's grievance appeal to the Foreign Service Grievance Board was denied in October 2003. She was assigned to a post in Managua, Nicaragua in 2004, where she currently serves.
Plaintiff's fatigue has persisted during this course of events, although her anxiety has been controlled by medication. In May 2004, plaintiff began taking Wellbutrin in addition to Provigil for additional help in combating her fatigue.
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying 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." Id. (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
The Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability" may be discriminated against by a federal agency "solely by reason of her or his disability." 29 U.S.C. § 794(a). Section 501 of the Act further mandates that employers take affirmative steps to provide for qualified persons with disabilities. 29 U.S.C. § 791(b); see Carr v. Reno, 23 F.3d 525, 528 (D.C. Cir. 1994). EEOC regulations interpreting Section 501 require agencies to make reasonable accommodations for persons with disabilities unless such accommodations would impose undue hardship on the agency.*fn5 29 C.F.R. § 1630.9(a).
To establish a prima facie case of discrimination under the Rehabilitation Act for failure to accommodate, a plaintiff must show "(1) that [she] was an individual who had a disability within the meaning of the statute; (2) that the employer had notice of [her] disability; (3) that with reasonable accommodation [she] could perform the essential functions of the position; and (4) that the employer refused to make such accommodations." Scarborough v. Natsios, 190 F. Supp. 2d 5, 19 (D.D.C. 2002) (quoting Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001)). To establish a prima facie case of prohibited employment discrimination under the Act based on disparate treatment, a plaintiff must show, by a preponderance of the evidence, that she "'[has] a disability within the meaning of the [Act]; that [she] was 'qualified' for the position with or without reasonable accommodation; and that [she] suffered an adverse employment action because of [her] disability.'" Duncan v. Washington Metro. Area Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001) (en banc) (quoting Swanks v. Washington Metro. Area Transit Auth., 179 F.3d 929, 934 (D.C. Cir. 1999)). Defendant initially moves for summary judgment on the ground that plaintiff is not a qualified person with a disability within the meaning of the Rehabilitation Act. Because plaintiff's status as a disabled person is an essential element of both of plaintiff's claims, the Court will address this issue first.
I. Plaintiff's Disability Status
A person is disabled under the Rehabilitation Act if she "has a physical or mental impairment which substantially limits one or more of [her] major life activities; has a record of such an impairment; or is regarded as having such an impairment."*fn6 29 U.S.C. § 705(20)(B).
Defendant argues that plaintiff's impairment is not a disability because the effects of the hemorrhage were only temporary. Alternatively, defendant argues that plaintiff's impairment is not a disability because it does not substantially limit one or more of her major life activities. Plaintiff responds that, as a result of the hemorrhage, she suffers from acute fatigue that has persisted and grown worse over a period of more than three years, and that her condition has substantially limited her in several major life activities.
A. Physical or Mental Impairment
The first prong of the analysis is to determine whether plaintiff suffers from a physical or mental impairment. Although plaintiff's characterization of the impairment at issue has shifted over the course of this litigation, it is now clear after discovery and briefing that plaintiff alleges that her impairment consists of the brain hemorrhage and the fatigue she attributes to that event. Initially, plaintiff characterized her impairment as the result of "continuing effects of a life-threatening subarachnoid brain hemorrhage" she suffered on September 25, 2001. Am. Compl. at ¶ 12. During discovery, plaintiff stated that she began at some point to suffer from "chronic fatigue," which "grew progressively worse during 2002 and 2003." Def. Ex. 8 (Pl.'s Resp. to Def.'s Interrogs., Resp. No. 6) at 5. Plaintiff also claims that she began to experience panic attacks "with growing frequency in 2002" and subsequently developed trichotillomania, an obsessive-compulsive hair-pulling disorder. See Pl. Ex. 1 (Decl. of Jill Thompson) at ¶ 3. When asked by the Court at the motions hearing to clarify the impairment plaintiff is claiming, her attorney responded that the "brain hemorrhage ... and [its] continuing neurological effects" constitute plaintiff's physical impairment, Summ. J. Hr'g Tr. (unofficial) at 23, lines 17-18, and that "the main effect was really excessive fatigue and the problems of obtaining restful sleep," id. at 24, lines 15-16. Thus, the Court focuses its analysis on the hemorrhage and the fatigue.*fn7
The EEOC regulations define a physical or mental impairment as "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or ... [a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."*fn8 29 C.F.R. § 1630.2(h). Plaintiff's hemorrhage clearly falls within the definition of impairment under the Rehabilitation Act. However, as defendant points out, the hemorrhage was an injury of temporary duration which required only a two-day hospital stay and approximately six weeks of sick leave. See Pl. Ex. 15 (Medical Questionnaire) at 2; Def Ex. 5 (Thompson Depo.) at 34. Plaintiff has not suffered another hemorrhage since September 2001. Thus, defendant contends that plaintiff did not suffer from an impairment when she returned to work, requested reasonable accommodations or applied for the positions at issue.*fn9 Plaintiff responds that the impairment at issue is, collectively, the hemorrhage and the fatigue she attributes to that event.*fn10
Plaintiff asks the Court to infer that her excessive fatigue is a consequence of the hemorrhage because she was not fatigued before the hemorrhage. However, plaintiff has not provided any medical evidence that fatigue is a lingering effect of a Grade 1 subarachnoid hemorrhage. Indeed, the testimony of plaintiff's own neurologist suggests that fatigue is not typically a side effect. See Def. Ex. 4 (Oraee Depo.) at 54. The doctor testified that other than headaches, which could persist for weeks or months, there should not be any long-term neurological effects following a Grade 1 hemorrhage. Id. Plaintiff's medical records do not suggest that fatigue resulted from the hemorrhage in her particular case. In the months following the hemorrhage, plaintiff's neurologist observed that her symptoms were limited to headaches with no mention of fatigue. See Def. Ex. 9 (Dr. Oraee letter to Dr. Al-Bassam dated 10/11/2001); Def. Ex. 10 and 11 (Dr. Oraee office notes dated 10/22/2001 and 11/16/2001). Later, when plaintiff began suffering from fatigue, her neurologist prescribed Provigil and continued to see her as a patient for medication monitoring; however, this medication was not a treatment for the hemorrhage. Def. Ex. 4 (Oraee Depo.) at 68-69. Moreover, plaintiff herself describes the stressful situation at work as one cause of her fatigue, and plaintiff's neurologist also suggests that her fatigue may be due to work-related stress rather than the hemorrhage. See Def. Ex. 8 (Pl. Resp. to Def. Interrogs., Resp. No. 6) at 4-5; Def. Ex. 4 (Oraee Depo.) at 63-64. Fatigue is a common complaint and may be a symptom of a number of ...