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Edwards v. U.S. Environmental Protection Agency

October 18, 2006

JASON M. EDWARDS, PLAINTIFF,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Jason M. Edwards brings this employment-discrimination suit against defendant the United States Environmental Protection Agency ("defendant," "EPA," or "Agency"). Edwards, who is Native American and African American, alleges that EPA violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discriminating against him on the basis of race, retaliating against him, and subjecting him to a hostile work environment, and also discriminated against him on the basis of disability in violation of the Rehabilitation Act, 29 U.S.C. § 791 et seq.,*fn1 by denying his requests for reasonable accommodation. Presently before the Court is defendant's motion for summary judgment. For the reasons set forth below, the Court will grant the motion and enter judgment in defendant's favor.

BACKGROUND

The pertinent facts, which are largely undisputed,*fn2 chronicle plaintiff's tumultuous relationship with his supervisor in the National Center for Environmental Research ("NCER"), an office within EPA's Office of Research and Development ("ORD"). Plaintiff, who identifies himself as Native American and African American, suffers from a variety of medical ailments. Compl. at 2, ¶ 3. Specifically, he remains partially paralyzed from a stroke that he suffered prior to working at EPA, and also suffers from Crohn's disease/colitis, "a malady of the small intestine that can cause periodic episodes of obstruction and acute abdominal pain," United States v. Martin, 363 F.3d 25, 49 (1st Cir. 2004), and that is exacerbated by stress and fatigue. Compl. at 11, ¶ 16; Def.'s Exh. 11 (Sept. 18, 2001 Mem. to Clark). In addition to the limitations on his mobility caused by the paralysis, he claims that his intestinal disorder - - and the accompanying medication - - has led to bursitis, arthritis, joint pain, and diminished eyesight. Id.

Plaintiff worked as a Program Analyst in the Environmental Sciences Research Division ("ESRD") of NCER. Def.'s Stmt. at 4, ¶¶ 1-3. In that position, he managed research grant and fellowship programs, conducted occasional site visits, and served for a period as Special Emphasis Project Manager and Tribal Program Coordinator. Compl. at 5-6, ¶ 14; Pl.'s Exh. 8 at 249 (First Record of Investigation). His supervisor early in his tenure at EPA was David Kleffman. Def.'s Stmt. at 4, ¶ 5. According to plaintiff, Kleffman allowed him to work from home when weather conditions made it difficult for him to commute to work. Def.'s Exh. 17 at 138 (Edwards 2005 Depo.); Def.'s Exh. 38 at 3, ¶ 15 (Levinson Decl.). Kleffman's successor, Barbara Levinson, continued this informal arrangement, though the practice was never memorialized in writing. Def.'s Exh. 17 at 138; Def.'s Exh. 38 at 3, ¶ 15.

While Kleffman was still his supervisor, plaintiff filed his first EEO complaint with EPA's Office of Civil Rights in March of 1999. Plaintiff alleged that Kleffman had retaliated against him by refusing to promote him to GS-9 and refusing to convert him from non-competitive status to full-time, competitive status, which would have allowed him further career advancement. Def.'s Ex. 5 at 2-3. This complaint was resolved by a settlement agreement in June 2001, in which EPA agreed, among other things, to pay plaintiff a designated amount and to consider him for a promotion to GS-11. See Def's Stmt. at 5 n.2.

Rebecca Clark became Acting Director of ESRD, and plaintiff's supervisor, shortly after the settlement agreement had been signed. Def.'s Stmt. at 4, ¶ 4. She had an introductory meeting with plaintiff on July 31, 2001. Compl. at 14, ¶ 14. During the meeting, which he described as "cordial," Def.'s Exh. 17 at 71, plaintiff informed Clark about the settlement agreement and his expectation that he would be transferred out of NCER in the near future. Def.'s Stmt. at 9, ¶ 31; Pl.'s Exh. 8 at 249. Plaintiff expressed his willingness "to pull [his] own weight" while still in the division, but "made it clear" to Clark that his "first priority was to secure . . . employment elsewhere." Def.'s Exh. 17 at 72; Def.'s Exh. 3 at 124 (Clark 2005 Depo.). Clark captured these representations in her handwritten notes from the meeting, where she indicated, among other things, plaintiff's desire to relocate to Ohio, his "reluctance" to be assigned "new tasks," his willingness to provide "some help with other things," and that he had an economics degree. Pl.'s Exh. 8 at 249. After this "cordial" introductory meeting, however, plaintiff's relationship with Clark deteriorated rapidly, leading to the series of events that comprise the basis for this lawsuit. Those events can be divided into three categories: (1) plaintiff's workload and opportunity for training; (2) the Agency's alleged failure to provide plaintiff with reasonable accommodations for his disability; and (3) a number of actions that Clark allegedly took in retaliation for plaintiff's filing of an EEO complaint.

1. Work and Training Opportunities under Clark

Plaintiff alleges in his complaint that his duties were reduced after he filed his first EEO complaint in the spring of 1999. Between that time and his transfer in 2003, he says, no major projects were assigned to him, and his workload dropped by 60%. Compl. at 4-5. In addition, supervisors prevented him from conducting unsupervised site visits and stripped him of his responsibilities as Tribal Program Coordinator and Special Emphasis Project Manager in July and September 2000, respectively. Id. Although acknowledging that this reduction in responsibilities took place before Clark's tenure as Acting Division Director, plaintiff insists that the trend persisted under Clark's leadership in so far as the management of new grant recipients continued to be assigned to others. Pl.'s Stmt. at 14.

Clark did, however, assign plaintiff a task outside the scope of his other day-to-day duties. Seizing on plaintiff's background in economics, Clark called several colleagues, including her husband, Dr. Matthew Clark, to ask whether they had any economics-related work that plaintiff could perform. Def.'s Exh. 3 at 124-25. Dr. Clark, an economist in another division of EPA, agreed to provide an assignment. He asked plaintiff in late July 2001 to conduct a literature search in connection with a report being prepared by his office. Def.'s Exh. 19 at 24-25

(Dr. Clark 2004 Depo.); Def.'s Exh. 3 at 138-39.

On Sunday, October 21, 2001, plaintiff sent Clark an e-mail message informing her that his grandfather had passed away and that he would be missing work to attend the funeral in Cleveland. Def.'s Exh. 21 (Oct. 21, 2001 E-mail to Clark). That same evening, he left a draft of the assigned literature search on the chair of Dr. Clark, purportedly with a note in which he told Dr. Clark that he would be leaving for a funeral and asked to discuss his work product upon his return. Compl. at 9; Pl.'s Exh. 2 at 84-85 (Edwards 2006 Depo.). The draft consisted of what Dr. Clark described as "a printout of a single online search that may have taken 15 minutes or half an hour." Pl.'s Exh. 4 at 37. Dr. Clark then reported to his wife that the work performed by plaintiff "was not adequate." Def.'s Exh. 3 at 128.

During the period when he was supposedly working on the bibliography for Dr. Clark, plaintiff also sought out multiple offsite training opportunities. Def.'s Stmt. at 8, ¶ 25. In September 2001, for instance, Rebecca Clark authorized plaintiff to attend Applied Clear Air Act training in South Carolina. See id.; Def.'s Exh. 17 at 92. Plaintiff later sought permission - - first verbally and then in writing - - to attend an American Indian Science and Engineering Society (AISES) conference that was to be held Albuquerque, New Mexico in November 2001. Def.'s Stmt. at 8, ¶ 26; Def.'s Exh. 18. In plaintiff's view, attending the AISES conference was important to his "efforts to secure other employment" because the conference included a "fairly large career fair" that featured recruiters from both government agencies and the private sector. Def.'s Exh. 17 at 98-99. Clark did not permit plaintiff to attend the conference. Def.'s Stmt. at 9, ¶ 28. Between August 1, 2001 and April 30, 2002, she also declined to authorize out-of-town training for nine other employees, two of whom were African American. Def.'s Exh. 20 (Denied Requests for Training and/or Travel).

2. EPA's Alleged Failure to Accommodate

In August 2001, plaintiff verbally requested permission to bring his 10-week-old puppy to the office. Plaintiff told Clark that his doctor had recommended that he bring the dog to work to ameliorate work-related stress. Def.'s Stmt. at 5, ¶ 12. Clark had discussions with other EPA personnel and with plaintiff, eventually inquiring whether the dog had been trained or had been certified as a service animal. Def.'s Exh. 10 (Timeline of Events). She then requested that plaintiff submit medical documentation and information on the dog's training. See id. Plaintiff responded by submitting a memorandum detailing his medical condition and a note from his doctor, Kevin Geraci. Def.'s Stmt. at 6, ¶¶ 13-14. Geraci disclaimed expertise on the concrete benefits that the dog could confer, emphasizing that "[t]he need for the dog is beyond the realm of [his] discussion here," but also expressed support for what he described "as a holistic and experimental approach." Def.'s Exh. 15 (Nov. 16, 2001 Mem.); Pl.'s Stmt. at 5-6. Dr. Geraci concluded, "I would say 'go for it!' It certainly cannot hurt." Id. After a second verbal request on November 2, 2001, plaintiff formally requested that the Agency make a final decision. Def.'s Exh. 14 (Nov. 14, 2001. Mem. to Clark). Clark then officially rejected the request, explaining that the nature of plaintiff's medical condition, which she understood as "anxiety about commuting to work and interacting with [] co-workers," did "not relate to any mobility, hearing, visual or other impairments which require use of a service animal." Def.'s Exh. 15. Clark thus concluded that Dr. Geraci's "perspective on [plaintiff's] use of a service animal was not based on an articulated medical need." Id.

Plaintiff also maintains that Clark revoked the prior arrangement under which he could work from home when his disabilities made it difficult for him to commute to the office. Compl. at 11, ¶ 16; Def.'s Exh. 17 at 138. Plaintiff's previous supervisors had never required him to seek formal approval for this arrangement, in part because plaintiff "worked from home only infrequently and then usually for only a portion of the day." Def.'s Exh. 38 at 3, ¶ 15. Clark asked Levinson, her immediate predecessor as the Acting Director of ESRD, whether plaintiff was eligible to work from home. Levinson told Clark that, to the best of her knowledge, plaintiff "had not submitted a formal request or been granted official authorization to work from home." Id. at 3, ¶ 16. A review of plaintiff's personnel records confirmed that account. Def.'s Stmt. at 8, ¶ 24. Clark then told plaintiff that, if he wanted authorization to work from home, he would have to submit a formal request in accordance with EPA's "Flexiplace" regulations. Id.; Def.'s Exh. 41 (EPA Flexiplace Policy). Plaintiff never did so. Def.'s Stmt. at 8, ¶ 24.

3. Alleged Retaliatory Acts

Following Clark's refusal to authorize both the trip to the AISES conference and the request to bring a dog to the office, plaintiff filed an EEO complaint against her on November 28, 2001. Compl. at 11, ¶ 16. Clark first learned of the complaint when she was contacted by an EEO counselor on December 5, 2001. Id.; Def.'s Stmt. at 9, ¶ 30. On the day that he filed the complaint, plaintiff was supposed to be at NCER's two-day offsite retreat. Employees had been advised at a staff meeting on November 15 that attendance at the retreat was mandatory, and a flyer distributed to them via e-mail said: "Everyone is expected." Def.'s Exh. 24 at 176 (Clark 2002 EEO Interview); Def.'s Exh. 23 (Email with Flyer Attachment). When plaintiff did not show up on November 27, Clark returned to the office and left a note on his chair explaining that he was expected to be at the retreat and asking him why he was not there. Def.'s Exh. 24 at 176 (Clark 2002 EEO Interview). Plaintiff received the note but did not come to the retreat either that day or the next. Def.'s Stmt. at 11, ¶ 40; Def.'s Exh. 17 at 189.

Further confrontations between plaintiff and Clark followed. On December 13, 2001, Clark issued plaintiff an official reprimand for his absence from the offsite retreat. Def.'s Stmt. at 11, ¶ 42; Def.'s Exh. 26 (Letter of Reprimand). Four days later, in accordance with the settlement agreement, Clark conducted a performance review with plaintiff in order to determine whether he should be promoted to GS-11. Def.'s Stmt. at 17, ¶ 74. Clark had previously consulted with Barbara Levinson, plaintiff's supervisor during the first half of the year, regarding plaintiff's performance. Def.'s Exh. 38 at 3, ¶ 17. On December 17, Clark informed plaintiff that she would not recommend him for a promotion. Def.'s Exh. 24 at 179. After receiving plaintiff's written objections to the grounds that she had provided, Clark responded with documents that detailed the inadequacies in plaintiff's performance throughout the course of the year. Def.'s Exh. 28 (Plaintiff's Objections); Def.'s Exh. 40 (Clark's Dec. 19, 2001 Mem. to Plaintiff).

Plaintiff's attendance problems continued in early 2002. On January 28, he called the ESRD secretary, rather than Clark, to report that he would be out sick that day. Def.'s Stmt. at 12, ¶ 46. Clark had previously informed ESRD employees that they had to contact her directly when requesting leave. Def.'s Stmt. at 43; Def.'s Exh. 27 (Sept. 7, 2001 E-mail to Staff). The following day, Clark issued a memorandum charging plaintiff with being absent without leave (AWOL), a period of leave without pay. Def.'s Exh. 29 (January 29, 2002 Mem.). Her memorandum noted that she had previously warned plaintiff, in an e-mail message dated November 9, 2001, that further failures to comply with the leave policy would result in AWOL status. Id.; see Def.'s Exh. 27 at 243 (E-mail of Nov. 9, 2001).

In early March, plaintiff failed to attend large segments of the Quality Assurance Training that the Agency deemed mandatory. Def.'s Stmt. at 13, ¶¶ 49-55. Plaintiff had been advised of his obligation to attend the training in a series of e-mail messages, as well as at a staff meeting that he attended on March 7, 2002 (though plaintiff denies that he was so informed at the staff meeting). Id. at 14, ¶ 49; Def.'s Exh. 30 at 276-287 (E-mail exchanges); Def.'s Exh. 31 at 2 (Clark 2002 EEO Interview). He arrived late on March 11, 2002, the first day of training, did not attend the second day of training, and again arrived late on the third day because he was meeting with Jack Puzak, NCER's Deputy Director, to complain about Clark's supervision. Def.'s Stmt. at 14, ¶ 55; Def.'s Exh. 30 at 291 (March 14, 2002 E-mail from Edwards to Clark). Clark responded by proposing that plaintiff be suspended for five days. Def.'s Exh. 7 (May 28, 2002 Notice of Proposed Suspension). NCER Director Peter Preuss approved Clark's recommendation, over plaintiff's objections, on August 5, 2002. Def.'s Exh. 33.

Plaintiff returned to ESRD in January 2003 after a one-month detail in the Office of the Inspector. Def.'s Stmt. at 15, ¶ 62. Clark then told plaintiff that he would be required to submit a weekly report detailing his activities and projects. Id. at 15, ¶ 63; Def.'s Exh. 17 at 268-69. Plaintiff failed to turn in the first weekly report, which was due on Friday, February 14, 2003. Def.'s Stmt. at 15, ¶ 65. Clark sent him a reminder that afternoon, and did so once again two weeks later when plaintiff still had not turned in a single report. Id. at 15, ¶¶ 65-66. Plaintiff explained to Clark during a meeting on March 5, 2003 that he had not completed any reports because he had nothing to say, he believed that Clark had imposed the report requirement only on him, and he was spending his time looking for a job outside of NCER (which he viewed as his highest priority). Def.'s Exh. 9 (May 12, 2003 Notice of Proposed Suspension). After consulting with the Office of Human Resources and her supervisors, Clark proposed that plaintiff be suspended for ten days. Id.; Def.'s Stmt. at 16, ¶ 70. Jack Puzak approved the suspension on July 1, 2003. Id. at 16, ¶ 72; Def.'s Exh. 36 (Decision on Proposed Suspension).

In response to the ten-day suspension, plaintiff filed a second EEO complaint in August 2003. Def.'s Stmt. at 4 n.1. His two complaints were later consolidated in December 2004. Compl. at 3, ¶ 9. Plaintiff filed the instant suit when 180 days had passed since his request for a hearing before the Equal Employment Opportunity Commission. See 29 C.F.R. § 1614.407.

SUMMARY JUDGMENT STANDARD

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.

DISCUSSION

Plaintiff alleges in his one-count complaint that defendant EPA discriminated against him on the basis of race, retaliated against him for filing an EEO complaint, and denied him reasonable accommodations for his disabilities. EPA asserts that plaintiff has failed to make out a prima facie case on any of his allegations and that, even if he has, the Agency has proffered legitimate, nondiscriminatory reasons for its actions. The Court will address plaintiff's allegations in turn, beginning with the claims under Title VII.

I. Title VII

A. Legal Framework

Disparate treatment and retaliation claims brought pursuant to Title VII are analyzed under the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The first step in the framework requires a plaintiff to carry the burden of establishing a prima facie case by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). In order to make out a prima facie case of discrimination, a plaintiff must show that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). The elements of a prima facie case for retaliation require that plaintiff establish: "(1) that she engaged in statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two." Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (quoting McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984)); Brody, 199 F.3d at 452. Under the Supreme Court's recent decision in Burlington Northern & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006), an adverse employment action in the retaliation context is one that could conceivably dissuade a reasonable worker from making or supporting a charge of discrimination. See also Velikonja v. Gonzales, - - F.3d - - , No. 05-5030, Slip Op. at 3 (D.C. Cir. Oct. 17, 2006); Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006).

Once the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer's burden, however, is merely one of production. Burdine, 450 U.S. at 254-55. The employer "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the ...


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