The opinion of the court was delivered by: Reggie B. Walton United States District Judge
This case arises from claims brought pursuant to the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794a (2006), and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 (2006). Second Amended Complaint ("2d Am. Compl.") ¶ 4. The plaintiff asserts that the defendant discriminated against him based on his disability, race, and sex. Id. ¶
1. Currently before the Court is the Defendant's Motion to Dismiss, or in the Alternative, Defendant's Renewed Motion for Summary Judgment ("Def.'s Mot."). For the reasons explained below, the Court will grant the defendant's motion, and grant summary judgment in favor of the defendant on all of the plaintiff's claims.*fn1
A. The Plaintiff's Factual Assertions
Drawing all justifiable inferences in favor of the plaintiff, as the Court must, the factual allegations underlying this lawsuit are as follows. In 1997 the plaintiff suffered a stroke and consequently developed several physical impairments, including peripheral vascular disease, diabetes, stenosis, lumbar arthritis, and emotional difficulties. 2d Am. Compl. ¶ 9. These conditions affected the plaintiff's ability to write, speak, see, walk, and concentrate. Id. Nonetheless, the plaintiff, an attorney who had held various legal positions in private practice and the government, obtained employment with the Department of Veterans Affairs ("VA") in January 2006, where he worked until April 1, 2010. Id. ¶ 7. The plaintiff began his employment at the VA as a GS-11-level employee, and had advanced to the GS-13 level when he retired from the VA. Id. During his time at the VA, the plaintiff worked for four different judges on the Board of Veterans Appeals. Pl.'s 11/22/10 Opp'n, App. at 26.*fn2
As an associate attorney at the VA, the plaintiff was required to meet a quota, or "production requirement," of 156 credits (i.e., cases) per year. See Pl.'s 11/22/10 Opp'n, Appendix ("App.") at 14-15. The plaintiff asserts that the VA "had a policy going back a number of years that specifically permitted a downward departure from the number of decisions a staff attorney had to produce if that lawyer had a serious medical condition." 2d Am. Compl. ¶ 10. The plaintiff further maintains that the VA had a "policy that a staff attorney could request a transfer [to a different decision team] at any time," and that he therefore "did not need a reason to request the transfer to a different supervisor." Id. ¶ 12. He claims that "[m]inorities and women routinely requested such transfers and these requests were granted," while he, an allegedly disabled "white male, was denied the [requested] transfer." Id.
In March 2008, the plaintiff began working for Judge Bohan of the Board of Veterans Appeals. Pl.'s 11/22/10 Opp'n, App. at 26 (Dec. 29, 2008 Perman Letter). "Things went well until June 11, 2008[,] when he received an 'untimely' rating on a case by Judge Bohan." Id. The plaintiff continued to receive "untimely and unsatisfactory" ratings on his work from Judge Bohan. Id. "Until these problems began, [the plaintiff] received eight outstanding ratings and complimentary notes. He even received an 'outstanding' rating from a different judge while working for Judge Bohan in September 2008." Id.
On November 17, 2008, the plaintiff e-mailed James Terry, the Chairman of the Board of Veterans Appeals, stating that he had "been assigned to write for Judge Barry Bohan since March 2008," and explaining that because his "current professional work relationship with Judge Bohan and [Deputy Vice Chairman] Cohn [did] not appear to be working out," he was requesting a transfer to a different decision team. Def.'s Mot., Exhibit ("Ex.") 1 (Nov. 17, 2008 E-mail). In that e-mail, the plaintiff observed that he had "worked successfully for two judges, and [had] taken pride in receiving occasional outstanding ratings for [his] writing" since he began his work with the VA in 2006. Def.'s Mot., Exhibit ("Ex.") 1 (Nov. 17, 2008 E-mail).
The plaintiff maintains that he is disabled and could not meet his production quota unless he worked "excessive hours." 2d Am. Compl. ¶ 17. Specifically, the plaintiff's psychiatrist diagnosed him with adjustment disorder with mixed anxiety and depression. Def.'s Mot., Ex. 3 (December 9, 2008 Letter from Gerald P. Perman, M.D., P.A. ("Dec. 9, 2008 Perman Letter").
The psychiatrist believed that the plaintiff began suffering from the adjustment disorder with mixed anxiety and depression on June 11, 2008. Id.; see also Pl.'s 11/22/10 Opp'n, App. at 54 (May 18, 2010 Report of Dr. Richard Sutton) ("Until June , Mr. Klute reported he had done well in his position with the [VA] and enjoyed the challenges of his work."). According to the plaintiff, this condition worsened to the point that in December 2008, he needed an accommodation to continue working. 2d Am. Compl. ¶ 10; see also Pl.'s 11/22/10 Opp'n, App. at 26 (Dec. 9, 2008 Perman Letter) ("Mr. Klute has fallen behind on his weekly case quotas because of the depression, anxiety[,] and difficulty concentrating that working for Judge Bohan has resulted in."). The plaintiff twice requested, once through his psychiatrist, an accommodation in December 2008: first on December 9, 2008, and again on December 29, 2008. See 2d Am. Compl. ¶¶ 10-11. On each occasion the requested accommodation consisted of a reduced caseload and transfer to another "decision team" (or supervisor). 2d Am. Compl. ¶¶ 10-11; Def.'s Stmnt. ¶ 7. Each time the request was denied. 2d Am. Compl. ¶¶ 10-11; Def.'s Stmnt. ¶ 7. In March 2009, the plaintiff "again requested a waiver of the fair share production requirements [i.e., a reduced caseload] and a transfer to a different decision team [i.e., a different supervisor]." 2d Am. Compl. ¶ 16. The requests were also denied by letter dated March 9, 2009. Id.
The plaintiff asserts that because of the allegedly discriminatory treatment, he "missed work from December 9, 2008[,] to March 30, 2009, and was placed under severe emotional stress." 2d Am. Compl. ¶ 14. "He nevertheless returned to work" and "was threatened with a performance improvement plan under the same supervisor due to his failure to meet the case production requirements." Id. ¶¶ 14-15. Because of the allegedly discriminatory treatment, the plaintiff retired on March 31, 2010. Id. ¶ 17. He claims that he "would not have left federal service if he had been granted the accommodations he requested." Id.
B. Procedural History and the Parties' Arguments
The plaintiff originally filed his complaint on July 2, 2010. He then filed an Amended Complaint on August 6, 2010, alleging discrimination in violation of the Rehabilitation Act, Title VII, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12102, 12111-12 (2006). The defendant filed his first motion for summary judgment on November 5, 2010. On July 12, 2011, the Court, acting sua sponte, dismissed all claims without prejudice, denied without prejudice the defendant's motion for summary judgment, and directed the ...