Plaintiff Angela Marie Meadows, a suspended employee of the Department of Justice who is proceeding pro se, brings this suit alleging disability discrimination and retaliation in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701 et seq. against Attorney General Michael B. Mukasey. This matter is before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 61]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion for Summary Judgment is granted as to Counts I through V of the Third Amended Complaint and granted in part and denied in part as to Count VI.
Plaintiff was a senior GS-12 analyst at the United States National Central Bureau ("USNCB"), the Department of Justice agency responsible for facilitating U.S. law enforcement cooperation with INTERPOL. Plaintiff specialized in international art theft and forgery and was the Program Manager of USNCB's Art and Cultural Property Program. The position required Plaintiff to maintain a security clearance.
Starting in 2000, Plaintiff began to be frequently absent from work. She missed 295 work days from January 2000 through October 2002---or more than an entire work year. Indeed, in both 2001 and 2002, Plaintiff was not present for more than half of the available work days. Defendant claims that her absences were frequent, excessive, and unpredictable and rendered her unable to perform her job. As a result of these frequent absences from work, for example, Plaintiff missed a meeting with the Executive Director of the Bolivian National Museum of Ethnology and an INTERPOL conference in Honduras.
Plaintiff offered a variety of reasons for these absences, including the fact that she suffered from depression which was aggravated by her sister's illness and death from cancer.
Significantly, however, Plaintiff does not contest her record of absences and admitted at her deposition that she was unable to adequately perform her job because of her attendance record.
The Defendant argues that the USNCB was forced to take a number of disciplinary measures as a result of Plaintiff's frequent and unpredictable absences. On October 26, 2000, Plaintiff's supervisor, Steven Markardt, issued a leave restriction letter that imposed a series of additional requirements and restrictions that Plaintiff was required to comply with when taking leave in the future. She later failed to comply with these additional leave restrictions.*fn3
On December 26, 2000, Plaintiff had a meeting with Aaron BoBo, a member of USNCB management, regarding her absences. At that meeting she informed him that she had met with an EEO counselor and intended to file a formal complaint alleging discrimination by the agency. Following the meeting, Mr. BoBo sent an e-mail to Richard Haisch,*fn4 in which he described the meeting and asked the following:
Here is my question...she has told me that she is going to file an EEO complaint against her supervisor...we are considering reassigning her to another GS-12 Sr. Analyst position...I have not told anyone else in Mgmt. that she has told me about her filing or intent to file a complaint. If we reassign her now are we on tenable ground??? Just because an employee says they are going to file or does file are they protected from management's desire to reassign them based on programmatic need??? I think we can but I need your input before we go forward. E-mail from Aaron BoBo to Richard A. Haisch, December 26, 2000. Mr. Haisch responded:
If you reassign this employee at this point in time, you should have a very good business reason. One of my concerns would be that such an action could be construed as admitting there is a problem with the supervisor's treatment of the employee. I would suggest we wait until the counseling stage is completed, and revisit the question at that point.
E-mail from Richard A. Haisch to Aaron BoBo, December 28, 2000.
In January 2001, Plaintiff's responsibilities as Manager of the Art and Cultural Property Program were reassigned. An e-mail from Mr. BoBo to Plaintiff noted that he had met with her EEO counselor earlier that day and explained USNCB's rationale for the move:
As a result of your continued unauthorized, unexpected and extended absences, Management had to reevaluate your ability to continue to perform the duties in the Cultural Property Program Manager position to its expectations.... As a result of the lack of sufficient Medical Documentation, Management's evaluation and your EEO request, it has been determined to reassign you to other duties.
E-mail from Aaron BoBo to Angela Meadows, January 22, 2001.
Nevertheless, Plaintiff's pattern of absences continued, and Mr. Markardt recommended that Plaintiff be suspended for five days on March 27, 2001. Plaintiff filed an appeal of the proposed suspension on April 6, 2001 to USNCB Deputy Chief James Sullivan.
On June 19, 2001, Mr. BoBo sent an e-mail to Mr. Sullivan urging him to approve the suspension for a number of reasons, including the following:
From statements made by Angela, on numerous occasions, she has asked co-workers to give testimony against her supervisor Stephen Markardt in her upcoming EEO Complaint/Suit. Due to the fact that she has engaged in this behavior, of soliciting support from co-workers, it is even more important that management move forward in disciplining unacceptable behavior which directly impacts the work place. Management must to ...