The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Jeffrey Test, a former employee at the United States Department of Justice, brings this employment discrimination and retaliation action against defendant Eric H. Holder in his official capacity as the Attorney General of the United States. Now before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the motions and the parties' memoranda, the applicable law, and the entire record, Test's motion is denied in full and defendant's motion is granted in part and denied in part.
In 1986, while on duty with the U.S. Marine Corps, Test was injured in a military training exercise. He shattered bones in both legs and was diagnosed with Compartment Leg Syndrome ("CLS"). Because of the military accident and the resulting CLS, the U.S. Veterans' Administration certified that Test has a 10% disability rating in each leg. See Pl. Mem. Exs. 4- 5.*fn2 Despite the CLS and disability rating, however, Test has worked without accommodation his entire life. See Deposition of Jeffrey Test at 84.
At all times relevant to this action, Test was employed as the Director of the Information Technology Division in the Office of the Chief Information Officer, which is part of the U.S. Justice Department's Office of Justice Programs ("OJP"). Compl. ¶ 3. On April 28, 2006, Test submitted a written request for a "maxi-flex" schedule, in which he proposed a schedule that would allow him to work 80 hours per two-week period yet receive one fixed day off.*fn3 Then, for the next two months, facts unfolded on two separate but parallel tracks.
Test's schedule request was denied on May 2, 2006. Id. ¶ 21. On May 12, 2006, he received a mid-year review from his supervisors, during which he was told that "everything looks pretty good, things are going pretty well." Pl.'s EEO Interview, Oct. 31, 2006, at 16 (attached as Pl. Mem. Ex. 6). On May 18, 2006, Test met with Stacie Brockman, the OJP EEO Officer. Compl. ¶ 22. Test informed Brockman that he believed that he was denied his schedule request because of his disability and asked Brockman to notify his supervisors that he had sought EEO relief.
Meanwhile, on May 4, 2006, Test's supervisor, Kyle Holtzman, was informed that Test had tossed a large book in the direction of several other employees on May 3, 2006, triggering an investigation into other allegations of misbehavior by Test. See Notice of Proposed 5-Day Suspension (attached as Def. Mem. Ex. C). On May 23, 2006 -- five days after Test met with Brockman -- Holtzman entered Test's office and stated that people were "gunning" for Test. See Pl.'s EEO Interview at 58. On June 5, 2006, Holtzman issued a notice of a proposed five-day suspension, which was transmitted to Test on June 12, 2006. Pl.'s EEO Interview at 32.
At this point, the two tracks merge back together. Test was provided with an opportunity to respond in writing to his notice of proposed suspension. Test responded on June 27, 2006. Def. Mem. Ex. C. In his response, he revealed his EEO activity to his supervisors, Holtzman and Gerald Fralick. Id.
On July 6, 2006, Holtzman again entered plaintiff's office, stating that Test's EEO activity was "killing" Holtzman. See Compl. ¶ 28. Around the same time, Test's supervisors allegedly began allowing employees and contractors who normally reported to Test to circumvent his authority, see id. ¶ 23, and began to schedule meetings when Test would be out of the office, see id. ¶¶ 24-25. On August 3, Test filed a formal EEO complaint, see Pl. Mem. Ex. 23, and on August 9 he was formally issued his suspension, which had been reduced to two days, see Pl. Mem. Ex. 2. At the conclusion of the suspension, Test was refused re-entry into his office building for several hours. See Compl. ¶ 31. In September 2006, Test's supervisors refused to discuss an "individual development plan" with him. Id. ¶ 35. On October 27, 2006, Test received a "successful" performance evaluation and did not receive a performance bonus. See id. ¶¶ 32-33, Pl. Mem. Ex. 21. Test filed suit in this Court on January 31, 2007.
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323. In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "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). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
I. Test's Disability Discrimination Claim
To prevail on a disability discrimination claim under the Rehabilitation Act, 29 U.S.C. § 701, et seq., a plaintiff must demonstrate that he is disabled and that he has suffered an adverse employment action because of that disability.*fn4 See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). According to Test, he satisfies these elements here because: he has a disability (CLS); the denial of his maxi-flex schedule request constitutes an adverse employment action; and the denial was because of his disability. See Pl. Mem. at 2.
Defendant challenges Test's claim that he is disabled. Because he is not disabled, defendant asserts, Test has no viable disability discrimination claim. See Def. Mem. at 5. Under the Rehabilitation Act, a person is disabled if he has "a physical or mental impairment which substantially limits one or more of his major life activities." 29 U.S.C. § 705(20)(B). Pointing to cases like Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), defendant argues that the word "substantially" contemplates a demanding standard. See Def. Mem. at 7-8. And deposition testimony reveals that Test can walk (albeit with an impaired gait), fly airplanes, scuba dive, and work without accommodation. This, defendant maintains, shows that Test is not disabled under the meaning of the Rehabilitation Act.
Test responds that defendant's framing of the legal standard ignores the impact of recent amendments to the Americans with Disabilities Act.*fn5 Pl. Rep. at 10. The "Findings" section of the ADA Amendments Act of 2008 states that cases like Toyota Motor have "narrowed the broad scope of protection intended to be afforded by the ADA." See ADA Amendments Act of 2008 § 2(a)(5), Pub. L. No. 110-325, 122 Stat. 3553. Accordingly, the stated purpose of the ADA Amendments Act is "to reject the standards enunciated by the Supreme Court in Toyota Motor . . . that the terms 'substantially' and 'major' in ...