The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Beth M. Norden sues the Smithsonian Institution for alleged discrimination under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. The Court has already found that the Smithsonian violated the Rehabilitation Act when it failed and refused to return Dr. Norden to work in 2004 and discharged her. See Dkt. ## 38 & 39 (Aug. 3, 2007 Mem. Op. & Order). Pending now is the question of whether the Smithsonian also violated Dr. Norden's rights when it put her on unpaid leave in November 2002. See Def.'s Renewed Mot. for Summ. J. [Dkt. # 41] and Pl.'s CrossMot. for Summ. J. [Dkt. # 42]. Also before the Court is Defendant's Motion to Strike and for Sanctions [Dkt. # 57].
The Court will recount only those facts necessary to resolve the pending motions and refers the reader to its earlier decision for a more complete recounting.
Dr. Norden holds a Ph.D. in entomology.*fn1 She worked at the Smithsonian's Department of Entomology at the Museum of Natural History for approximately 15 years. In the summer of 2000, Dr. Norden contracted Dengue Hemorrhagic Fever ("DHF") while in Brazil in support of a Smithsonian research project. She attempted to return to work in 2002 but was unsuccessful and the Smithsonian put her on unpaid leave in November 2002. Thereafter, the Smithsonian failed and refused to authorize a detail for Dr. Norden to the Department of Agriculture, which had received funding for a part-time job that she might have performed. Dr. Norden alleges that the Smithsonian violated the Rehabilitation Act by its actions.
Federal employees must contact an equal employment opportunity ("EEO") counselor within 45 days of an allegedly discriminating event. 29 C.F.R. § 1614.105(a)(1)-(2). There is no doubt that, at the latest, Dr. Norden filed a complaint with the Smithsonian's EEO office in April 2003. The parties dispute whether the Court should receive into evidence a letter from Bruce Goodman, Dr. Norden's counsel in 2002-2003, to the Smithsonian's EEO office dated February 10, 2003. The parties also dispute whether Dr. Norden had sufficient warning of the 45-day deadline through EEO posters at her workplace. The issues will be addressed in reverse order.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
A federal claimant is entitled to equitable tolling of the 45-day deadline to contact an EEO counselor if she can make a showing that she was unaware of the time limit. Harris v. Gonzales, 488 F.3d 442 (D.C. Cir. 2007). Lack of actual notice of the 45-day time limit is not itself sufficient to warrant equitable tolling. Rather, the D.C. Circuit adopted the Seventh Circuit's two-step constructive notice inquiry, which considers "(1) whether 'notification of the time requirements was provided,' and (2) whether the notification was 'reasonably geared to inform the complainant of the time limits.'" Id. at 445 (quoting Johnson v. Runyon, 47 F.3d 911, 918 (7th Cir. 1995)). As the Court of Appeals explained, "it cannot be that an employee claiming to have been unaware of the 45-day time limit would be automatically entitled to an extension even though the agency, through posters, employee handbooks, orientation sessions, etc., made conscientious efforts to advise its employees of the time limit." Id. The relevant EEO posters were not in the record when the parties last filed dispositive motions, which prevented the Court from deciding whether the time limit should be tolled for Dr. Norden. That gap has now been filled and the posters are in the record.
The EEO posters in use by the Smithsonian from spring 2001 until 2004 were approximately 20 by 24 inches, and included the following language explaining the time limits:
As an applicant or employee of the Smithsonian Institution, you have the right to file a complaint if you believe you have been discriminated against because of race, color, sex, religion, national origin, age or disability. You can also file a complaint if you believe you have been retaliated ...