The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Elbert Leroy Dage is an environmental scientist and a thirty-year veteran of the U.S. Environmental Protection Agency. He is also permanently disabled. Dage brought this action against the EPA alleging discrimination and retaliation on the basis of disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 791 et seq. On January 9, 2007, the Court entered judgment against Dage finding that he failed to administratively exhaust many of his claims and that for the remaining claims that were exhausted, he did not establish he had been subject to an adverse employment action, an essential element of his case. This matter is before the Court on Dage's motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e). For the reasons explained below, the motion will be denied.
The Court presumes familiarity with the operative facts detailed in its initial opinion. See Dage v. Leavitt, 2007 U.S. Dist. LEXIS 925 (D.D.C. 2007) (Penn, J.). Hence, only an abbreviated summary of facts pertaining to the motion for reconsideration is provided here.
Dage holds a masters degree in civil engineering and is an environmental scientist in the Office of Prevention, Pesticides and Toxic Substances (OPPTS) at the U.S. Environmental Protection Agency. Compl. ¶ 11. He joined the EPA in 1975 at grade 7 and was elevated to grade 13 in 1980, the position he holds today. Id. ¶¶ 11-12.
Dage is disabled. Id. ¶ 15; Answer ¶ 31. He has Chronic Obstructive Pulmonary Disease (COPD) and suffers from severe asthma and allergies. Compl. ¶¶ 27-28, 30. He has a history of anaphylaxis,*fn1 bronchitis and upper respiratory infections. Id. ¶ 30. His allergy symptoms are numerous and severe and include 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 irritation, itching of the ears, and bronchitis. Id. ¶ 27. Given the severity of his symptoms, Dage avoids "numerous environmental triggers," such as dust, mold, pollen, organic solvents, printing inks, paints, kerosene, turpentine, oil, gasoline, asphalt fumes, perfumes and colognes, air fresheners, moth balls, air pollution, vehicle exhaust, smoke, hot air, cold air, and exercise. Id. ¶ 28. Dage's disability is permanent and affects his ability to "breathe normally," which limits his ability "to perform . . . major life activities, such as sleeping, running, bicycling, walking extended distances, climbing stairs, and working." Id. ¶¶ 15, 31.
Dage claims that he and other EPA employees were injured and became disabled when they were exposed to "chemicals and toxins" at EPA's Waterside Mall office building (Waterside Mall) in the 1980's. Compl. ¶ 15. Dage first experienced severe allergy symptoms in 1985 while working in his EPA office at Waterside Mall. Id. ¶ 16. In 1988 and 1989 he experienced numerous episodes of upper respiratory infections and worsening allergy and asthma symptoms. Id. ¶ 17. He sought the advice of several medical professionals during the time, including medical doctors in the EPA's health unit. Id. ¶¶ 18-19. On June 11, 1990, Dage reported to the EPA health unit after experiencing an asthma attack. Two days later, a doctor in the health unit evaluated Dage and recommended that he participate in the EPA's Alternative Work Space program (AWS). The AWS program allowed EPA "employees to perform work from either their home using telephone and computer equipment or from a specially equipped EPA office space designed to minimize potential exposure to chemicals, allergens, and indoor air pollution." Id. ¶ 20. After several requests, see id. ¶¶ 21-23, Dage was temporarily relocated to an AWS office at the EPA's Crystal Station complex, id. ¶¶ 23, 39. This reassignment was made permanent in 1993 and Dage remained in the Crystal Station AWS office until 2003, when he was reassigned to work from home. Id. ¶ 39. Dage has not been removed from the AWS program or reassigned back to Waterside Mall.
The EPA modified the AWS policy on February 1, 1999 (1999 AWS policy). Compl. ¶ 46. Under the new 1999 AWS policy, each employee had "to notify their immediate supervisor of his/her AWS status within 30 days." Id. ¶ 48. Employees who did not notify their supervisor as instructed faced "automatic revocation of his [or her] AWS status and accommodations." Id. After notifying their supervisors, employees had "to submit new applications and new medical documentation within six months in order to retain [AWS status]." Id. ¶ 49. There were two additional substantive changes to the policy that are relevant here. First, the EPA took the position under the 1999 AWS policy "that reasonable accommodations under the Rehabilitation Act and reasonable accommodations under the AWS policy [were] separate." Id. ¶ 47. Second, under the 1999 AWS policy employees had to renew their enrollment in the program every two years. Specifically, an employee desiring to remain in the AWS program had to prepare and submit a renewal application every other year. As part of this renewal application, the employee had to consult a physician who could document the employee's medical condition and need for AWS workspace. Id. The prior AWS policy did not contain a re-certification requirement.
In keeping with the new policy, Dage notified his immediate supervisor, Jennifer Seed, that he was in the AWS program in early 1999, id. ¶ 48, and submitted an application to remain in the program later that year, id. ¶ 51. To comply with the certification requirement, Dage consulted a physician, which required him to use sick leave and incur "medical and other expenses."*fn2 Id. ¶ 52. Dage claims the new certification requirement subjected him to the "stress and fear" that he might lose his status as an AWS employee. Id. ¶ 56. Dage faced this same stress and fear and incurred medical expenses two years later, in 2001, when he submitted his renewal application. Id. ¶ 54.*fn3
Dage sought informal counseling with an EPA counselor on March 17, 1999, only a few weeks after the EPA implemented the new AWS policy. Compl. ¶ 3. After counseling, Dage filed a formal administrative complaint with the EPA's Office of Civil Rights on September 2, 1999. Id. See generally Def.'s Mot., Ex. 1, September 2, 1999 Complaint of Discrimination in the Federal Government (EEO Compl.). In his EEO complaint, Dage alleged the 1999 AWS policy was retaliatory and discriminatory. The new policy was retaliatory, he claimed, because it only applied to employees, like Dage, who had been injured at Waterside Mall and had "sent a letter to the [EPA] Administrator on January 2, 1999, advising her of [their] concerns and requesting a meeting as to the new AWS policy." EEO Compl. ¶¶ 3, 13. Dage explained that the policy's re-certification requirement, required every other year, was overly burdensome and was "intended as retaliation" for speaking out against the policy. Id. ¶ 16. Furthermore, the new AWS policy was discriminatory, he claimed, because it would "have a disparate impact on one particular group of disabled employees" -- those employees who were injured at Waterside Mall. Id. ¶ 16. Dage complained that AWS employees were subject to "repeated medical testing," while employees who were not in the AWS program, or were in EPA's regular flexiplace program, were not. Id.
On February 12, 2004, Dage filed this action against the EPA, asserting the following claims: first, that the EPA had failed to recognize that Dage was disabled within the meaning of the Rehabilitation Act (Claim I); second, that the EPA failed to make several reasonable accommodations of Dage's disability (Claim II); third, that the EPA had intentionally discriminated against Dage due to his disability when it implemented the 1999 AWS policy (Claim III); and fourth, that the EPA retaliated against Dage by implementing and applying the new AWS policy against Dage and other employees who had been injured at Waterside Mall (Claim IV). Compl. ¶¶ 86-106. Dage's civil complaint also contained several allegations that he had faced discrimination and retaliation after the new policy was implemented, which the parties commonly refer to as his post-1999 allegations.
On December 8, 2005, the defendant filed a motion for judgment on the pleadings or, in the alternative, for summary judgment, which Judge John Garrett Penn of this Court granted in full. Dage filed the present motion to alter or amend judgment under Fed. R. Civ. P. 59(e) on January 24, 2007. The case was reassigned to the undersigned judge for consideration of Dage's Rule 59(e) motion on January 7, 2008.
I. Motion to Alter or Amend Judgment
A motion to alter or amend judgment under Rule 59(e) "is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam) (internal quotation marks and citation omitted); accord Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004). A Rule 59(e) motion is generally disfavored, and is reserved for "extraordinary circumstances," Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001); it is not an opportunity for an unhappy litigant "to reargue facts and theories upon which a court has already ruled," New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995), or "a vehicle for presenting theories or arguments that could have been advanced earlier," Burlington Ins. Co. v. Okie Dokie, Inc., 439 F. Supp. 2d 124, 128 (D.D.C. 2006) (citing Kattan v. Dist. of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993)); see also Independent Petroleum Ass'n of Am. v. Babbitt, 178 F.R.D. 323, 324 (D.D.C. 1998) ("Rule 59(e) motions are not to be used to relitigate matters already argued and disposed of; they are intended to permit the court to correct errors of fact appearing on the face of the record, or errors of law."). The burden is on the movant, Dage, to demonstrate "new facts or a clear error of law which 'compel' a change in the court's ruling." New York, 880 F. Supp. at 39 (quoting Natural Resources Defense Council. Inc. v. U.S. Environmental Protection Agency, 705 F. Supp. 698, 702 (D.D.C. 1989), vacated on other grounds, 707 F. Supp. 3 (D.D.C. 1989)).
In addressing Dage's claims in his motion, then, this Court will follow this narrow Rule 59(e) standard. Hence, although the underlying decision challenged by Dage was issued by a different judge, this Court will not examine Dage's claims de novo, but rather will employ the deferential Rule 59(e) standard. Nor, of course, would it be appropriate for this Court to undertake what would amount to appellate review of the January 9, 2007 decision granting judgment in favor of defendant. But in addressing Dage's claims on reconsideration, this Court is free to expand on the reasons supporting the entry of judgment for defendant, and indeed will do so below.
II. The McDonnell Douglas Framework
Dage claims discrimination and retaliation under Title VII and the Rehabilitation Act. Title VII makes is unlawful for a federal government employer to discriminate "based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). The Rehabilitation Act provides that "no 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 federal agencies take affirmative steps to provide for qualified persons with disabilities. 29 U.S.C. § 791; Carr v. Reno, 23 F.3d 525, 528 (D.C. Cir. 1994); Scarborough v. Natsios, 190 F. Supp. 2d 5, 19 (D.D.C. 2002).
Where there is no direct evidence of discrimination, the Court applies the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the [action in question]." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quoting McDonnell Douglas, 411 U.S. at 802).*fn4
In most cases, to make out a prima facie case of disparate-treatment discrimination, a plaintiff must demonstrate that: (1) he or she is a member of a protected class; (2) he or she has suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007); Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002). The prima facie requirements are slightly different for a retaliation claim, as the plaintiff must show: (1) that he or she engaged in a statutorily protected activity; (2) the employer took an adverse personnel action; and (3) that a causal connection existed between the two. Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999) (citing Mitchell v. Baldrige, 759 F.2d 80, 84 (D.C. Cir. 1985)). "A common element required for discrimination and retaliation claims against federal employers . . . is . . . [an] adverse action by the employer." Id. at 453.
Although Dage contends that there are several errors in the January 2007 opinion, he is essentially challenging two aspects of the analysis. First, Dage challenges the decision to dismiss claims II, III, and IV to the extent these claims encompass allegations that post-date the 1999 AWS policy. Second, Dage challenges the conclusion that the EPA's implementation of the 1999 AWS policy did not, as a matter of law, constitute discrimination or ...