The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This employment discrimination case is before the Court on the defendant's motion for partial dismissal or, alternatively, for partial summary judgment.*fn2 After careful consideration of the parties' papers and the entire record in the case, the Court granted defendant's motion by Order of March 31, 2009. This Opinion explains the reasoning underlying that Order. The Court will treat defendant's motion as a motion to dismiss for lack of subject matter jurisdiction with respect to plaintiff's failure to accommodate claim and grant the motion to dismiss with respect to that claim. The Court will treat defendant's motion as a motion for summary judgment with respect to plaintiff's unlawful discharge claim and grant the motion for summary judgment with respect to that claim.
Plaintiff Margaret Elaine Rand alleges that she is disabled because she has a psychiatric disorder (Adjustment Disorder with Mixed Disturbance of Emotions and Conduct) that substantially limits the major life activity of working. See Compl. ¶ 5. At all times relevant to her complaint, plaintiff worked for the Department of the Treasury. See id. ¶ 4. On June 28, 2006, plaintiff filed a request for an accommodation, stating that "[b]ecause of the anxiety caused by [a] supervisor who discriminates against me by watching every single minute of my day, and accusing me of not being at my desk when I am, I can no longer perform the duties of a regular, capable employee." See Mot., Ex. A at 2. She requested transfer to another position in the Department. See id. at 2-3. On or about July 5, 2006, plaintiff stopped coming to work and never returned to duty. See Mot., Ex. D, at 3.
On August 1, 2006, plaintiff's supervisor denied her request for accommodation on the ground that she had not established that she was a qualified individual with a disability. See Mot., Ex. B at 1. The letter denying the request stated that plaintiff could seek reconsideration of the denial by writing to her supervisor or by "fil[ing] an EEO Complaint, pursue an appeal to the Merit System [sic] Protection Board... or [by filing] an administrative grievance." See id. at 1-2. Plaintiff took no action until defendant instructed her to return to work by January 2, 2007 or be charged as AWOL. See Mot. at 3. Plaintiff did not return to work, and on January 25, 2007, her supervisor proposed her removal. See id. On February 12, 2007, plaintiff sought reconsideration of the August 1, 2006 denial of her request for reasonable accommodation. See Mot., Ex. C, February 12, 2007 Memorandum at 1. Defendant did not agree to plaintiff's request and as a result, plaintiff retired on February 28, 2007. See Compl. ¶ 5. Plaintiff filed a timely appeal of her removal with the Merit Systems Protection Board ("MSPB"). See Opp. at 3. The MSPB affirmed defendant's decision. See Mot., Ex. D at 23.
On April 24, 2008, plaintiff brought suit in this Court alleging disability discrimination as well as retaliation for engaging in protected activity under the Rehabilitation Act, 29 U.S.C. §§ 701, et seq., under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and under the Civil Service Reform Act, of 1978, Pub. L. No. 94-454, 92 Stat. 1111 (codified as amended in scattered sections of Title 5 of the United States Code). Defendant now moves for dismissal or, in the alternative, for summary judgment solely on plaintiff's claims under the Rehabilitation Act. While it is not always easy to parse plaintiff's complaint, the Court agrees with the defendant that a generous reading reveals two claims under the Rehabilitation Act: (1) a claim for failure to accommodate plaintiff's purported disability (stemming from the August 1, 2006 denial of plaintiff's accommodation request), and (2) a claim for unlawful discharge on the basis of disability (stemming from defendant's decision to terminate plaintiff in early 2007).
II. FAILURE TO ACCOMMODATE CLAIM
The exclusive remedy for federal employees alleging that federal agencies engaged in disability discrimination is Section 501 of the Rehabilitation Act, codified at 29 U.S.C. § 791. See Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003) (holding that Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, "does not provide federal employees an alternative route for relief under the Rehabilitation Act") (internal quotation marks and citation omitted); Raines v. United States Dep't of Justice, 424 F. Supp. 2d 60, 64 (D.D.C. 2006). Section 501(b) requires federal employers to take "affirmative action" when making "hiring, placement, and advancement" decisions regarding "individuals with disabilities." 29 U.S.C. § 791(b). Among other things, this provision requires federal agencies to reasonably accommodate the disabilities of otherwise qualified employees unless doing so would cause an undue hardship. See Woodruff v. Peters, 482 F.3d 521, 526 (D.C. Cir. 2007); Taylor v. Rice, 451 F.3d 898, 904-05 (D.C. Cir. 2006); Barth v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993).
A person alleging a violation of Section 501 is required to exhaust administrative remedies before bringing claims to federal court. See 29 U.S.C. § 794a(a)(1) (limiting judicial review to employees "aggrieved by the final disposition of [their administrative] complaint"); see also Spinelli v. Goss, 446 F. 3d 159, 162 (D.C. Cir. 2006); Taylor v. Small, 350 F. 2d at 1292. To begin that process, he or she must contact an Equal Employment Opportunity counselor to complain about the alleged violation of the Rehabilitation Act within 45 days of its occurrence. See Woodruff v. Peters, 482 F.3d at 527; see also 29 C.F.R. § 1614.105. "[U]nlike some exhaustion requirements, Section 501's is jurisdictional." Moore v. Schafer, 573 F. Supp. 2d 216, 219 (D.D.C. 2008). Thus, if a plaintiff fails to exhaust his or her Rehabilitation Act claims as required by Section 501, the claims are subject to dismissal for lack of subject matter jurisdiction. See Spinelli v. Goss, 446 F.3d at 162; Int'l Union v. Clark, Civil Action No. 02--1484, 2006 WL 2598046 at *9 (D.D.C. Sept. 11, 2006).
Defendant contends that plaintiff's failure to accommodate claim should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure because plaintiff failed to exhaust her administrative remedies with respect to this claim and therefore cannot state a claim for relief. See Mot. at 6-8. As discussed above, however, the exhaustion requirement of Section 501 is jurisdictional; thus, defendant's exhaustion argument is more properly asserted and evaluated under Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Defendant argues that plaintiff's failure to accommodate claim should be dismissed because plaintiff did not contact an EEO counselor, or take any other steps to initiate the administrative dispute resolution process, within 45 days of the August 1, 2006 notification that her reasonable accommodation request had been denied. See Opp. at 3-4. Plaintiff does not deny that she failed to initiate the administrative process within 45 days of being denied a reasonable accommodation. Instead she argues that she sufficiently exhausted her failure to accommodate claim by exhausting her unlawful discharge claim, which all agree she properly exhausted by way of her post-termination appeal to the MSPB. See Opp. at 3-4 (arguing that plaintiff was not required to exhaust her failure to accommodate claim because "the failure to accommodate claim is part of plaintiff's claim concerning her removal"). The Court disagrees with plaintiff.
In Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that each discrete adverse employment action triggers the statutory exhaustion requirement. Although the plaintiff in Morgan alleged numerous acts of discrimination and retaliation and a hostile work environment, the Supreme Court held that only those acts occurring within the applicable limitations period were actionable, regardless of any connection between the earlier acts and the ones about which the plaintiff had filed a timely complaint. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 113 ("discrete discriminatory acts are not actionable if time barred, even when they relate to acts alleged in timely filed charges"). After Morgan, to determine whether a claim must meet the procedural hurdles of the exhaustion requirement itself, or whether it can piggy-back on another claim that has satisfied those requirements (as plaintiff seeks to do by attempting to attach her failure to accommodate claim to her termination claim), the Court must decide whether the otherwise barred claim is for a "discrete" act of discrimination. See Coleman-Adebayo v. Leavitt, 326 F. Supp. 2d 132, 137-38 (D.D.C. 2004). Generally, hostile work environment claims which rely on allegedly discriminatory conduct falling outside the applicable charging period are treated as the only exception to the rule in Morgan. That is "because a hostile work environment violation - unlike a discrete act such as firing or failing to promote an employee - 'cannot be said to occur on any ...