The opinion of the court was delivered by: James Robertson United States District Judge
Plaintiff James A. Washington, proceeding pro se, sues his former employer, the Secretary of the Army. Citing the Rehabilitation Act, 29 U.S.C. § 701 et seq., and TitleVII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the amended complaint alleges that the defendant discriminated against the plaintiff because of his disability and retaliated against him for a prior legal activity. The defendant Secretary has moved to dismiss some claims and for summary judgment on other claims, the plaintiff has filed an opposition, and both parties have submitted numerous exhibits. For the reasons set forth below, the Secretary's motion will be granted in part and denied in part.
Mr. Washington had a job as a custodian in the Environment Services Division ("ESD") at the Walter Reed Army Medical Center from 1993 until he resigned on October 10, 2007.
Def.'s Stmt. of Material Facts not in Dispute ("Def.'s Facts") ¶ 1. Mr. Washington alleges that at "all relevant times," he was "disabled as a result of depression,"*fn1 Am. Compl. ("Compl.") ¶ 5, and alleges discrimination on this account, id. ¶ 8 ("Defendant took each of these [complained of] actions as a result of Washington['s]... disability.") He also alleges that the defendant retaliated against him because of his prior complaints and lawsuit. Id. ¶ 6 (implicitly referring to without citing his multiple EEO administrative complaints and his prior lawsuit, Washington v. White, Civil Action No. 01-420 (RBW) (D.D.C.), filed Feb. 27, 2001), id. ¶8 ("Defendant took each of these actions as a result of Washington['s] past filing of grievances...."). The Secretary counters that his employment decisions regarding Mr. Washington were motivated by Mr. Washington's chronic absenteeism and failure to comply with the leave policy, and not by his disability or his prior legal activity. See Mem. in Support of Def.'s Mot. to Dismiss in Part and for Summ. J. ("Def.'s Mot.") at 31-36.
Mr. Washington, like all ESD employees, was subject to a leave policy that required him to provide medical documentation justifying any sick leave lasting more than three days. Def.'s Facts ¶ 9; Def.'s Mot., Ex. 2, Decl. of Leon C. Thurston, Apr. 7, 2009 ("Thurston Decl.") ¶ 4. The factual record establishes that in May 2004, citing Mr. Washington's negative sick leave balance and repeated failure to comply with the standard leave policy, Mr. Washington's supervisor issued a leave restriction notice to him, requiring that he request leave for any planned absence at least one day in advance in writing, and to call his supervisor within the first two hours of the shift for any unplanned absence. Def.'s Mot. Ex. 5; Def.'s Facts ¶ 12. By agreement dated June 28, 2004, and approved by the court, Mr. Washington and the defendant settled a prior Title VII lawsuit. See Washington v. White, Joint and Voluntary Stipulation of Settlement and Dismissal (June 30, 2004).*fn2 In November 2004, the leave restriction was extended because Mr. Washington had used another 275 hours of sick leave and was only sporadically complying with the leave restrictions imposed earlier. Def.'s Mot. Ex. 7; Def.'s Facts ¶ 12-13. These leave restrictions were extended periodically through the remainder of Mr. Washington's employment due to his continued chronic absenteeism. See Opp'n Exs. 42, 43, 48 (notices extending leave restrictions).
In January 2005, the plaintiff claimed he was injured on the job, a claim as to which his supervisor expressed his doubts to management. Compl. ¶ 7B; see also Thurston Decl. ¶ 6 & Encl. 4 (explaining the basis for expressing his doubts about a reported knee injury). Later that month, the defendant was advised that due to his knee injury Mr. Washington should be assigned to only light duty. Def.'s Mot. Ex. 10. In March 2005, in lieu of other light duty, he was temporarily assigned to work outside as a doorman on the loading dock. Compl. ¶ 7C. Thereafter, he was assigned to light duty answering telephones and conducting inventory. Thurston Decl. ¶ 7. In the work year 2005, Mr. Washington was absent 872 hours, which is a little more than 43% of the typical 2000 hour work year. Opp'n Ex. 48.
In January 2006, Mr. Washington's supervisor directed other employees not to answer questions about Mr. Washington's EEO complaint. Compl. 7I. The supervisor, Leon Thurston, has averred that he told other employees that "they shouldn't talk to anyone about the case until they checked with management first to see if the person was legitimately there." Thurston Decl. ¶ 13 (further explaining that his intention "was to maintain some order at the worksite [sic], and to make sure whoever came to talk to my employees was therefore an appropriate reason.").
Mr. Washington was absent more than eleven days in January and February, and all but 5 days, aggregated, in March. Def.'s Facts ¶ 9. Without providing medical documentation, he cited workplace stress as the reason. Opp'n Ex. 124, 124-B. In early March 2006, Mr. Washington believed a co-worker stole his lottery ticket, and made multiple verbal threats to that co-worker's physical safety. See Thurston Decl. ¶ 2 & Encl. 1 ("Memorandum to File" signed by Edna Royster, Mar. 9, 2006). Mr. Washington was absent from work all of April. Def.'s Facts ¶10. Nonetheless, in April 2006 he complained of a "large volume of work" because a worker on the night shift had "not been performing his duties," and complained that he had not been assigned to work overtime on "weekends for months." Opp'n Ex. 32; see also Compl. ¶ 7M; Opp'n at 27. By mid-April, in the wake of his absenteeism and his verbal threats of bodily harm, his employer arranged for a psychological fitness-for-duty examination to be conducted in June, and directed Mr. Washington to attend. Def.'s Facts ¶ 6; Opp'n Ex. 122. In May, Mr. Washington reported to work only one and one-half days. Def.'s Facts ¶ 10. In June, the month Mr. Washington was due to return to regular duty after having been on "light duty" since sustaining his knee injury some 18 months earlier, he reported for just one day of duty - the psychological examination. Id. ¶ 10; Def.'s Mot., Ex. 4 (Report of Psychological Examination) at 8 (noting that Mr. Washington reported that he was due to return to regular duty that month). The report of the psychological examination, submitted on or about July 31, 2006, see Opp'n Ex. 109 (cover letter for report), advised that despite his long-term treatment for his mental health problems, it was not likely that Mr. Washington would be able to resume a productive role as an employee, see Def.'s Facts ¶ 8, Def.'s Mot. Ex. 4 (Report of Psychological Examination). Mr. Washington did not report to work at all in July 2006 or anytime thereafter. Def.'s Facts ¶ 10. In September 2006, because he was still in violation of his leave restrictions, Mr. Washington's absences were designated as without leave ("AWOL"). Thurston Decl. ¶ 25. Mr. Washington was cleared by his personal psychiatrist to return to work on December 26, 2006, see Opp'n Ex. 115, but he did not report to work. Instead, he requested administrative leave with pay. See id. at 32 & Ex. 156-B. His supervisors advised him that they did not have grounds to approve his request for paid leave. Def.'s Facts ¶¶ 50, 51.
In January 2007, Mr. Washington made a request under the Freedom of Information Act to his employer for his medical and other records. See Reply to Pl.'s Opp'n to Def.'s Mot. ("Reply"), Decl. of Judy J. Bizzell, Sept. 18, 2009 ("Bizzell Decl.") ¶¶ 5, 8. The defendant provided multiple responses to his request, including releasing more than 600 pages of documents. Id. ¶¶ 7, 9, 12, 14, 16. Mr. Washington continued in unpaid AWOL status until he resigned by letter dated October 10, 2007. Def.'s Facts ¶ 10.
Mr. Washington posits that he was discriminated and retaliated against when the defendant did not place him on administrative leave with pay rather than classify him as AWOL. See Compl. ¶ 7T; Opp'n at 30 ("The plaintiff couldn't work due to the examination for a pre-existing condition that the employer knew about for years."); see also Def.'s Mot. Ex. 19. He also suggests that he was not free to return to work after the psychological exam. Compl. ¶ 7S; Opp'nat 32 ("The plaintiff requested administrative leave due [to] the fact [that] the plaintiff couldn't work because of the ordered exam.") (punctuation altered). In addition, he identifies several other instances that he offers as examples of the defendant's alleged disability discrimination and retaliation, including extending the leave restriction in November 2004, Compl. ¶ 7A, treating some absences as AWOL and taking other attendance-related measures, id. ¶¶ 7D-7H, 7X, directing other employees to not answer questions about plaintiff's EEO complaint without confirming that the questioner was legitimately present, id. ¶ 7I, directing plaintiff to report for the fitness for duty examination in summer 2006, id. ¶ 7L, assigning plaintiff to work temporarily in inclement weather as a doorman for the loading dock, id. ¶ 7C, failing to investigate an alleged theft by co-workers, id. ¶¶ 7J, 7N, expressing disbelief of an unwitnessed workplace injury for which Mr. Washington filed a claim, id. ¶ 7B, low pay, id. ¶ 7V, allowing excessive workloads and providing no overtime assignments in the months leading up to April 2006, id. ¶ 7M, not timely providing requested documents, id. ¶¶ 7O, 7P, 7U, and violating the terms of their prior settlement agreement, id. ¶ 7R.
On a motion to dismiss, a complaint or part of it may be dismissed if it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A pro se complaint is entitled to liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, any time a court determines that a claim filed by a plaintiff proceeding in forma pauperis fails to state a claim upon which relief may be granted, the claim must be dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii). In considering whether a complaint fails to state a claim upon which relief may be granted, a court generally "must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007), and "grant plaintiffs the benefit of all inferences that can be derived reasonably from the facts alleged," but need not accept either a plaintiff's legal conclusions, or inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted).*fn3
A movant is entitled to summary judgment when he can show that on the entire record before the court, "there is are 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. ...