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Dage v. Leavitt

January 9, 2007


The opinion of the court was delivered by: John Garrett Penn United States District Judge


This comes before the Court on Defendant's Motion for Judgment on the Pleadings, or in the Alternative for Summary Judgment [#44] ("Def.'s Mot.").*fn1 The Environmental Protection Agency ("EPA" or "Agency") moves for dismissal of the Complaint on the grounds that Elbert Leroy Dage failed to exhaust his administrative remedies with respect to his administrative Complaint ("EEO Complaint"), and failed to set forth sufficient facts to support his discrimination and retaliation claims. Def.'s Mot., at 1. Within Plaintiff's Opposition to Defendant's Motion for Judgment on the Pleadings, or in the Alternative for Summary Judgment and Request for Oral Hearing [#51] ("Pl.'s Opp."), Dage argues that the Court should not dismiss his Complaint because he exhausted his administrative remedies, and there are material facts which remain in dispute. Pl.'s Opp., at 1.

The Court concludes that the instant Motion should be granted because Dage has failed to exhaust some of his administrative remedies, and where he has not, there are no material facts in dispute which merit his case proceeding to trial. The Court's conclusions are fully explained below.


Dage, who holds a masters degree in civil engineering from Howard University, was hired by the EPA in 1975 at grade 7. Complaint and Jury Demand ("Complaint"), at ¶¶ 10-12; accord Answer, at ¶¶ 10-12. He currently works at the Agency as an Environmental Scientist withinthe Existing Chemicals Assessment Branch of the Risk Assessment Division in the Office of Pollution Prevention and Toxics ("OPPT") in the Office of Prevention, Pesticides and Toxic Substances ("OPPTS"). Complaint, at ¶ 11. Having consistently received promotions, above-average performance ratings and numerous awards throughout his tenure at the EPA, Dage was promoted to grade 13 on September 7, 1980, where he remains today. Id. at ¶ 12.

Dage was injured during the late 1980's by his occupancy of office space at the Agency's Waterside Mall headquarters facility. Answer, at ¶ 15; see Complaint, at ¶ 15. It is Dage's contention that he was injured specifically due to exposure "to chemicals and toxins from the installation of new carpeting and to microorganisms" at the Waterside Mall facility, "including mold and bacteria in the Heating Ventilation Air Conditioning ('HVAC') system." Complaint, at ¶ 15. As a result, Dage further contends that from roughly January 1988 to the present, [he has] experienced eight episodes of upper respiratory infections[,] . . . . symptoms of allergy and asthma[,] . . . . Anaphylaxis[,] . . . . coughing, watery eyes, sinus irritation, drowsiness, [] repetitive sneezing, difficulty breathing, dermatitis, rashes, redness of the skin, itching, fatigue, eye irritation, headaches, hives, runny nose, throat itch and drainage, itching in the ears, and bronchitis.

Complaint, at ¶¶ 17, 25, 27; see also Answer, at ¶ 17 ("[S]ome time in 1989, Plaintiff began reporting respiratory issues to the EPA Health Unit, where his complaints were documented."); Affidavit of Elbert Leroy Dage, November 7, 2001 ("Dage Affid."), at 6 (same).

Dage underwent a series of medical evaluations in the EPA Health Unit at Waterside Mall in early 1989, and was diagnosed, inter alia, as demonstrating "mild obstructive disease[.]" Dage Affid., at 3. He was also diagnosed at the Health Unit shortly thereafter as having "probable atopy, allergic rhinitis, history of hypersensitivity pneumonitis, and 'Tight Building' symptoms." Complaint, at ¶ 18; accord Answer, at ¶ 18. Dage sought outside medical treatment in 1990 from Dr. Edward Yanowitz, a physician at the George Washington University Medical Center. See Dage Affid., at 4-5; Letter Written by Dr. Edward Yanowitz, July 6, 2001 ("Yanowitz Letter"), at 1. Dr. Yanowitz provided a clinical assessment, which Dage then presented to his supervisors at the EPA, stating that because of the severity and permanency of his disability*fn2 , it was essential for him to be removed from the Waterside Mall facility for the duration of his employment. Id. at 5.

Later in 1990, Dage requested emergency relief from flooding, mold, and dust in his office in the Waterside Mall facility. Dage Affid., at 11. His immediate supervisor granted this request for reasonable accommodation by arranging for the removal of carpeting and re-tiling the filtration machine in Dage's office. Id. On July 11, 1991, Dage formally requested temporary Alternate Work Space ("AWS") relocation to the EPA's Crystal Station location because his respiratory problems were worsening with his continued presence at the Waterside Mall facility.*fn3 Complaint, at ¶ 23. The EPA relocated him to the Crystal Station site effective July 31, 1991, Answer, at ¶ 23, which Dage has also characterized as a reasonable accommodation. Dage Affid., at 12. One month later, Dage requested an answering machine, as well as a computer and printer to use in his temporary office in Crystal Station. Dage Affid., at 12. The EPA granted this accommodation request as well, also arranging for direct delivery of mail to Dage at Crystal Station. Id. Despite the relocation and fulfillment of a number of other reasonable accommodation requests, however, the Agency required Dage to return to the Waterside Mall facility several times each week on work-related matters from August 1991 to August 1993. Id. Dage formally requested that his relocation to Crystal Station be made permanent in July of 1993, which his EPA supervisor also granted. Id. at 13.

Since August 1993, the EPA has further reasonably accommodated Dage by allowing him to attend "any meetings" held in the Waterside Mall facility by teleconference, and also by arranging for personnel to "routinely" bring items which Dage needs out of the building to him. Id. The Agency also provided Dage the reasonable accommodation of restructuring his job because Crystal Station is not a Toxic Substance Control Act Confidential Business Information-secured area. Id. at 15.

On February 1, 1999, the EPA implemented a new AWS Policy.*fn4 Complaint, at ¶ 46.

Among other things, the 1999 AWS Policy requires that its participants submit medical examinations "within the first six months of the policy and thereafter at least once every two years . . . ." Id. at ¶ 68; accord Answer, at ¶ 68 ("[A]ny employee desirous of continued occupancy of AWS space must submit a bi-annual recertification, supported by medical evidence, demonstrating that he/she is still unable . . . to occupy his/her regular assigned office space.").

On September 2, 1999, Dage filed an administrative Complaint which alleges, inter alia, that before enactment of the 1999 AWS Policy, he had been receiving reasonable accommodation through the former AWS policy "since 1991." EEO Complaint, at 2; see Statement of Material Facts Not in Genuine Dispute ("Def.'s Fact Statement"), at ¶ 3. The administrative Complaint also alleges that the new AWS Policy "discriminated and retaliated against him and other EPA employees as a result of their disabilities[.]" Def.'s Fact Statement, at ¶ 4; accord EEO Complaint, at 2. The Agency dismissed Dage's administrative Complaint in March of 2000.*fn5 See Def.'s Fact Statement, at ¶¶ 6-7.

On February 12, 2004, Dage filed his Complaint which alleges that the 1999 AWS Policy violates the Federal Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq. ("the Rehabilitation Act" or "the Act") and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). Complaint, at ¶ 1. The EPA filed its Answer on April 29, 2004.


A motion for judgment on the pleadings is appropriately granted "only if, after the close of the pleadings, no material fact remains in dispute, and the moving party is entitled to judgment as a matter of law." Transworld Prods. Co. v. Canteen Corp., 908 F. Supp. 1 (D.D.C. 1995) (citing Peters v. Nat'l R.R. Passenger Corp., 296 U.S. App. D.C. 202, 204, 966 F.2d 1483, 1485 (D.C. Cir. 1992); Fed. R. Civ. P. 12(c)). "The standard of review on a motion for judgment on the pleadings is virtually identical to the standard for a motion to dismiss." Id. at 2 (citing UPS v. Int'l Bhd. of Teamsters, 859 F. Supp. 590, 592 & n.1 (D.D.C. 1994); Fed. R. Civ. P. 12(c), 12(b)(6); (other citation omitted)). That is, "[t]he Court will not dismiss plaintiff's complaint unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle plaintiff to relief." Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957) (other citation omitted)). Further, under this standard, "[t]he Court must accept as true all factual allegations and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Id. (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984) (other citations omitted) (emphasis added)). When considering a motion for judgment on the pleadings, "[t]he Court may not consider evidence 'outside the scope of the complaint.'" Gasser v. Ramsey, 125 F. Supp. 2d 1, 3 (D.D.C. 2000) (quoting Terry v. Reno, 322 U.S. App. D.C. 124, 135, 101 F.3d 1412, 1423 (D.C. Cir. 1996)).

Similar to a motion for judgment on the pleadings, a motion for summary judgment "may be granted only if the pleadings and evidence 'show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Paquin v. Fannie Mae, 20 F. Supp. 2d 94, 95 (D.D.C. 1998) (quoting Fed. R. Civ. P. 56(c)). "In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in the light most favorable to the nonmoving party." Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986) (emphasis added)). Notwithstanding, "'the mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient; there must be evidence on which the jury could reasonably find for the plaintiff to defeat a motion for summary judgment." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512 (1986) ...

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