The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff Margaret Elaine Rand brought this employment discrimination and retaliation suit against her former employer, the United States Department of the Treasury. The Court previously dismissed plaintiff's failure to accommodate claim for lack of subject matter jurisdiction and entered judgment in defendant's favor on plaintiff's unlawful discharge claim. See Rand v. Geithner, 609 F. Supp. 2d 97 (D.D.C. 2009). Ms. Rand's remaining claims are that the Treasury Department retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and that the Merit Systems Protection Board's ("MSPB") decision at the administrative level was arbitrary and capricious.
The defendant has moved for summary judgment on the grounds that it had legitimate, non-retaliatory reasons for Ms. Rand's removal, that Ms. Rand failed to produce evidence that these reasons are a pretext for retaliation, and that the MSPB's decision upholding plaintiff's removal was not arbitrary, capricious, or otherwise in derogation of the law and therefore should be upheld. Upon careful consideration of the parties' papers, the entire record in the case, and the relevant statutes and case law, the Court will grant defendant's motion.*fn2
At all times relevant to her complaint, plaintiff Margaret Elaine Rand worked for the Department of the Treasury. See Def. SMF ¶ 1. 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." Mot., Ex. C at 3 (plaintiff's request for reasonable accommodation). She requested a transfer to another position in the Department. See id. at 3-4. Plaintiff left work after a July 3, 2006 "panic attack" and never returned to her job after that date. See Def. SMF ¶ 23. On July 6, 2006, plaintiff filed an EEO complaint against Martin Melone and James Sullivan. See id. ¶ 24. Her complaint alleged the creation of a hostile work environment, harassment based on her sex (female), age (62), and race (Caucasian), and reprisal for prior EEO activity. See id.
On August 1, 2006, plaintiff's supervisor, James Sullivan, denied her request for accommodation on the ground that she had not established that she was a qualified individual with a disability. See Def. SMF ¶ 25. On September 25, 2006, Mr. Sullivan sent plaintiff a letter notifying her that she had exhausted her annual and sick leave since her departure on July 5, 2006, and instructing her to return to work by October 2, 2006. See id. ¶ 28. On October 2, 2006, plaintiff submitted a Family and Medical Leave Act ("FMLA") certification signed by her psychiatrist. See id. ¶ 29. Plaintiff's supervisors approved her FMLA certification and granted her leave until December 29, 2006. See id. ¶ 31.
On December 18, 2006, Mr. Sullivan again wrote to Ms. Rand, instructing her to return to work by January 2, 2007. See Def. SMF ¶ 32. Plaintiff did not return to work, and on January 25, 2007, her supervisor proposed her removal. See id. ¶¶ 32, 37. On February 12, 2007, plaintiff sought reconsideration of the August 1, 2006, denial of her request for reasonable accommodation. See Def. SMF ¶ 38; Pl. SMF ¶ 38. Defendant did not agree to plaintiff's request and, rather than be removed, plaintiff retired on February 28, 2007. See Def. SMF ¶ 40. Plaintiff filed an appeal of her removal with the Merit Systems Protection Board, and the MSPB affirmed defendant's decision on October 4, 2007. See id. ¶¶ 41-42. Plaintiff then appealed the MSPB's decision with respect to her Title VII and Rehabilitation Act claims to the Equal Employment Opportunity Commission ("EEOC"). See Rand v. Paulson, Petition No. 0320080034, 2008 WL 957758 at *1 (E.E.O.C. March 27, 2008). The EEOC upheld the decision of the MSPB. Id. at *2.
On April 24, 2008, plaintiff filed suit in this Court alleging disability discrimination as well as retaliation for engaging in protected activity under Title VII, the Rehabilitation Act, 29 U.S.C. §§ 701, 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). Plaintiff alleges that she was forced to retire from her position at the Department of the Treasury after the Department initiated her removal in January 2007. See Pl. SMF ¶ 40. She claims that the decision to remove her was retaliation for her prior protected Equal Employment Opportunity ("EEO") activities. See Complaint ("Comp.") ¶ 5. Defendant moved to dismiss plaintiff's claim or, in the alternative, for summary judgment on the Rehabilitation Act claim only. On March 31, 2009, this Court dismissed plaintiff's failure to accommodate claim for lack of subject matter jurisdiction and entered judgment in defendant's favor on plaintiff's unlawful discharge claim. See Rand v. Geithner, 609 F. Supp. 2d 97 (D.D.C. 2009). Now that discovery has concluded, defendant moves for summary judgment on plaintiff's remaining claims.
Summary judgment should be rendered if "the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show 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); 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 nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); 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 [her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving 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. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is required to provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's 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. at 380 ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support [her] claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).