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Gard v. United States Dep't of Education

November 23, 2010


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


John Gard, proceeding pro se, sues the United States Department of Education and its Secretary, Arne Duncan ("Defendants"), for alleged retaliation under the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. Mr. Gard filed a charge in March 2005 alleging that Defendants were violating the Rehabilitation Act by not continuing in-place reasonable accommodations for his disabilities. That charge has been dismissed by the Court.*fn1 At issue now is whether Defendants retaliated against Mr. Gard because of that charge by increasing the difficulties he experienced in securing reasonable accommodations. Having carefully reviewed the parties' briefs, exhibits, and the entire record, the Court finds no evidentiary support for Mr. Gard's argument that it was his filing a discrimination complaint, rather than his refusal to provide current medical records, that caused Defendants to deny him a reasonable accommodation. Therefore, summary judgment will be granted to the Defendants.


Mr. Gard has worked for the Department of Education since April of 1989. Second Am. Compl. [Dkt. # 29] ¶ 8. He alleges that he suffers from chronic pain, narcolepsy, and Post Traumatic Stress Disorder ("PTSD"), all of which are "interrelated and what happens in one disability/impairment affects the condition and control of the other disabilities/impairments and Plaintiff's major life activities." Id. ¶ 58. He states that Defendants "were fully aware" of these disabilities when they hired him, and that they "considered Plaintiff to be handicapped, treated Plaintiff as being handicapped and provided Plaintiff with reasonable accommodation from approximately April 1, 1989 through November 22, 2004." Id. ¶¶ 54-55.

At some point prior to October 1998, for reasons not specified in the Second Amended Complaint, Mr. Gard appears to have taken leave from his employment. He states that from October through December 1998, he was engaged in "return-to-work" discussions with the Department, during which time the Department had on file "a) Plaintiff's medical records, and b) Defendants' reasonable accommodation determinations and the reasonable accommodation authorized." Id. ¶ 42. He returned to work in December 1998 pursuant to a Return-to-Work Agreement dated December 14, 1998. Id. ¶¶ 44-45. He states that he disclosed some internal employee fraud to Jack Martin, Chief Financial Office, and John Higgins, Inspector General, in July and August of 2004. Id. ¶¶ 47-48.In November 2004, Mr. Gard's supervisor, Richard Mueller, notified Mr. Gard that the reasonable accommodation he had been provided as per the Return-to-Work Agreement (i.e., ability to work from home on an unspecified "case") would no longer be provided. Id. ¶ 49. Mr. Gard filed a "formal [EEO] handicap refusal to continue reasonable accommodation complaint against Defendants on March 14, 2005." Id. ¶¶ 16.C.; 50. Thereafter, he alleges his difficulties in securing a reasonable accommodation for his disabilities increased. Id. ¶ 50.

On September 5, 2006, Mr. Gard sent an email to his supervisor, Linda A. Stracke, Director of Financial Improvement and Post Audit Operations, to request a reasonable accommodation, attaching what he described as medical documentation and prior requests for reasonable accommodations which he had just located. See id., Ex. 1 (Pl.'s Ex. 442:*fn2 Sept. 5, 2006 email from Gard to Stracke et al.). Among the documents he forwarded was a series of letters sent to the Department, including an October 13, 1989, letter, reflecting a diagnosis of narcolepsy by the Mayo Clinic in Rochester, Minnesota, id., Ex. 1 (Pl.'s Ex. 436); a July 1992 letter confirming narcolepsy, neck and back pain, and hearing loss,Pl.'s Mem. in Opp'n to Mot. for Summ. J. ("Pl.'s Mem. in Opp'n") [Dkt. # 59], Ex. 5 (Pl.'s Ex. 344-6); as well as a June 1997 request from Mr. Gard for a reasonable accommodation of working at home three days per week, accompanied by a doctor's prescription for the same. Am. Compl., Ex. 1 (Pl.'s Ex. 441). Two weeks later, Ms. Stracke replied that she was unable to locate a "record of any written approval for a reasonable accommodation request from [Mr. Gard]." Id., Ex. 1 (Pl.'s Ex. 443-1) (Sept. 20, 2006 email from Stracke to Gard). She added that the Department would consider his request for a reasonable accommodation upon the receipt of updated, "i.e., last three months," medical documentation. Id. Mr. Gard responded that prior agency officials had determined he required a reasonable accommodation, that Ms. Stracke had no right to revoke that accommodation, and that he had previously responded to requests for medical records. Id., Ex. 1 (Pl.'s Ex. 444-1) (Oct. 3, 2006 email from Gard to Stracke). He charged that the request for further documentation was proof that the Department had violated the Privacy Act and Rehabilitation Act by destroying or failing to maintain his records.*fn3 Id.

Ms. Stracke again stated that she had "no record of an agency determination that" Mr. Gard was "a qualified individual with a disability or of any decision to provide [him] with any reasonable accommodation of a disability." Id., Ex. 1 (Pl.'s Ex. 445) (Nov. 24, 2006 email from Stracke to Gard). Without up-to-date medical information, Ms. Stracke refused to provide a reasonable accommodation to Mr. Gard. Id. Mr. Gard reads this email as a denial that he ever submitted medical records to the Department, ever requested a reasonable accommodation, or was ever provided with a reasonable accommodation. Id. ¶¶ 34-36. He never submitted current medical documentation as requested by Ms. Stracke, and as of the time briefs were filed, he had not submitted current medical documentation. Def's' Statement of Material Fact [Dkt. # 56] at 3 (Def's' Facts ¶ 8); Def.'s Mot. for Summ. J. [Dkt. # 56] Attach. 1 at 3 (Stracke Decl.¶ 7). During Ms. Stracke's tenure with the office from 2005 until 2010, no other employee under her supervision was granted a reasonable accommodation without medical documentation. Stracke Decl.¶ 9.

Despite Ms. Stracke's demands for current medical support, she "authorized requested adjustments to [Mr. Gard's] working conditions... as a matter of administrative discretion. Such approved adjustments included assignment to a private office and being allowed to work at home on an 'as needed' flex schedule." Def's' Facts ¶ 11. In September 2006, Ms. Stracke was "somewhat perplexed that accommodation remains an issue, since the Department has given you a private office and allows you to work at home most days on an 'as needed' flex schedule." Pl.'s Mem. in Opp'n, Ex. 8 (Pl.'s Ex. 443-1) (Stracke email to Gard of 9/20/06).

Before the Court is Mr. Gard's claim of retaliation under the Rehabilitation Act. See Am. Compl.,Count VI.


A. Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248. A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Id., Celotex, 477 U.S. at 322.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. at 325. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific ...

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