United States District Court, District of Columbia
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Theodore S. Allison, Karr & Allison, P.C., Washington, DC, for Plaintiff.
Wyneva Johnson, U.S. Attorney's Office for D.C., Washington, DC, for Defendant.
COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff Queenie Faison (" Faison" ), an employee of the United States Government Printing Office (the " GPO" ), brings this action against Defendant Davita Vance-Cooks  in her official capacity as the Public Printer of the United States, alleging that the GPO discriminated and retaliated against her on the basis of disability, race, sex, and age in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (" Title VII" ), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (" ADEA" ), and the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (" Rehabilitation Act" ) and/or the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (" ADA" ). See Compl., ECF No. . As both parties agree that the GPO is a covered employer under the ADA, Faison concedes that reliance on the Rehabilitation Act as the basis for her disability
discrimination claim is unnecessary. Accordingly, the Court shall review Faison's disability discrimination claims within the framework of the ADA. Faison asserts two basic claims against the GPO. First, Faison alleges that the GPO violated the ADA by failing to reasonably accommodate her disability following her return to work on or about April 14, 2005 after undergoing left carpal tunnel surgery (" Failure to Accommodate Claim" or " Claim One" ). Second, Faison alleges that she was subject to a hostile work environment and/or a pattern of discriminatory or retaliatory conduct on the basis of disability, race, sex and/or age (" Hostile Work Environment Claim" or " Claim Two" ). Presently before the Court is the GPO's  Renewed Motion to Dismiss, or in the Alternative, for Summary Judgment, which Faison has opposed. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole,  the GPO's motion shall be GRANTED-IN-PART and DENIED-IN-PART. Specifically, the Court shall ENTER judgment in the GPO's favor on Claim Two, the Hostile Work Environment Claim, because Faison has failed to adduce sufficient facts that would allow a reasonable trier of fact to conclude that Faison's allegations of wrongful conduct rose to the level of a hostile work environment, or that such alleged conduct was undertaken with the requisite discriminatory or retaliatory intent. However, the Court concludes that genuine questions of material fact exist which preclude summary judgment with respect to Claim One, the Failure to Accommodate Claim. Accordingly, only
Claim One, through which Faison maintains that the GPO failed to reasonably accommodate her disability following her return to work on or about April 14, 2005 after undergoing left carpal tunnel surgery, survives the Court's decision today.
Faison, an African American and American Indian female, born in September, 1944, is currently employed as a Supervisory Supply Technician at the GPO's Laurel Distribution Warehouse (" Laurel" ). Def.'s Stmt. ¶ 1; Pl.'s Stmt. ¶ 1. Faison has been employed by the GPO in various positions at both Laurel and the GPO Office located in Washington, D.C. (" Main GPO" ) since October 19, 1970. Id. Faison alleges that, as a result of multiple orthopedic injuries, including on-the-job injuries to her knee and wrist, she is substantially limited in several major life activities, and is therefore an individual with a disability. Compl. ¶ 13; Pl.'s Stmt. ¶¶ 70-71.
On April 25, 2008, Faison filed her complaint in the instant action, alleging that the GPO discriminated against her on the basis of her race, color, sex, disability, and age, and that the GPO retaliated against her for engaging in protected activity. See Compl., ECF No. , at ¶ 1. At the close of discovery, the GPO moved to dismiss, or in the alternative, for summary judgment, see Def.'s Mot. to Dismiss or in the Alternative for Summ. J. (" Original Motion for Summary Judgment" ), ECF No. , and Faison filed her opposition, see Pl.'s Mem. Opposing Def.'s Renewed Mot. to Dismiss and/or for Summ. J., ECF No. . Upon reviewing the parties' submissions in connection with the GPO's Original Motion for Summary Judgment, the Court found that " the GPO's motion and Faison's opposition [were] not in direct conversation" and concluded that " it would benefit from some clarification regarding the precise contours of the claims that Faison intends to pursue in this action." Order (Apr. 29, 2011), ECF No. , at 1. The Court observed that, based upon Faison's opposition, it appeared that Faison did not actually seek to pursue the vast majority of allegations which the GPO had identified in its moving papers as discrete claims of discrimination or retaliation. Id. at 2. The Court also
noted that the statements made by Faison in her opposition were " equivocal" and failed to " crystallize for the Court the claims that are actually at issue in this action." Id. at 3. Accordingly, the Court proceeded to identify what it understood to be Faison's claims in the action and directed Faison to: indicate whether the Court's understanding of her claims was correct; state clearly the ways in which the Court's understanding was incorrect, if any; specify whether her claim for hostile work environment and/or pattern of discrimination or retaliation is alleged to be on the basis of disability, race, sex, age, participation in protected activity, or some combination thereof; identify any additional factual allegations beyond those identified by the Court that Faison contends comprise component acts of her claim for hostile work environment and/or pattern of discrimination or retaliation; and specifically identify any additional discrete claims of discrimination or retaliation that she intends to pursue in this action, if any. Id. at 3-4.
On August 17, 2011, upon reviewing Faison's response, see Mem. of Pl. in Resp. to Order re Summ. J., ECF No. , the Court issued a  Memorandum Order describing in detail the precise contours of the claims that Faison is pursuing in this case and denying without prejudice the GPO's Original Motion for Summary Judgment, with leave to re-file after tailoring the motion to speak to those claims. The GPO subsequently filed the motion presently before this Court. As memorialized in this Court's August 17, 2011 Order, the Court understands Faison to be pursuing two claims, and only two claims, the contours of which are set forth below.
A. Claim One (Failure to Accommodate)
Claim One is a discrete claim for disability discrimination arising under the ADA. In her opposition to the GPO's Original Motion for Summary Judgment, Faison characterized this as " the central claim in this case." See Pl.'s Mem. Opposing Mot. to Dismiss and/or for Summ. J, ECF No. , at 4. The basis of the claim is this— Faison alleges that the GPO failed to reasonably accommodate her disability following her return to work on or about April 14, 2005 after undergoing left carpal tunnel surgery by (a) denying her request for " limited duty" and/or to work no more than five to six hours each day; (b) requiring her to commute to Laurel instead of reassigning her to a temporary or permanent position at Main GPO; (c) failing to promptly provide her with working voice-activated computer equipment to reduce the stress on her wrists; and (d) generally
failing to engage in an interactive process to accommodate her claimed disability. Order (Aug. 17, 2011), at 6.
B. Claim Two (Hostile Work Environment)
Claim Two is a single claim for hostile work environment and/or a " pattern of discriminatory or retaliatory conduct." The hostile work environment or pattern of wrongful conduct is alleged to have been retaliatory and/or discriminatory on the basis of disability, race, sex, and/or age. The factual basis of the claim is this— Faison alleges that she was subjected to hostile or abusive working conditions because (a) her immediate supervisor, Arthur Miles, sent her aggressive and insulting e-mails, berated her in front of others, excluded her from staff meetings, required her to check in each day upon arriving at work, ignored her when officials visit from the GPO's main office, and permitted his assistant, Diana Mayernick, to make derogatory statements to her; (b) she has been denied overtime work and pay on several occasions; (c) her second-level supervisor, Lisa Williams, sent her nasty and intimidating emails, told other supervisors and employees that she did not like Faison, commented at a November 2005 meeting that she was going to make Faison miserable, and assured Janet McCaskill and Leol a Keaton that she was going to make Faison so miserable that she would be happy to retire; (d) she received a poor performance evaluation in 2005; (e) she was assigned additional duties in May 2005 but was not promoted to a grade commensurate with her duties; (f) her travel reimbursement requests were " unduly scrutinized" in 2007; (g) the GPO failed to reasonably accommodate her disability following her return to work on or about April 14, 2005 after undergoing left carpal tunnel surgery by denying her request for " limited duty" and/or to work no more than five to six hours each day, requiring her to commute to Laurel instead of reassigning her to a temporary or permanent position at Main GPO, failing to promptly provide her with working voice-activated computer equipment to reduce the stress on her wrists, and generally failing to engage in an interactive process to accommodate her claimed disability; (h) the GPO ordered an inspector general investigation into whether Faison was injured in the line of duty; and (i) the GPO attempted to have Faison criminally investigated. Order (Aug. 17, 2011), at 6.
II. LEGAL STANDARD
Although styled in the alternative as a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant's motion turns upon consideration of materials that are outside the scope of the pleadings. Indeed, in the course of briefing the motion, both parties effectively treat the motion as one for summary judgment. For her part, Faison in no way suggests either that she has been deprived " a reasonable opportunity to present all the material that is pertinent to the motion," FED.R.CIV.P. 12(d), or that she " cannot present facts essential to justify [her] opposition," FED.R.CIV.P. 56(d). To the contrary, in opposition to the GPO's motion, Faison has introduced, and relies heavily upon, materials outside the scope of the pleadings. Accordingly, the Court shall treat the motion solely as one for summary judgment.
Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and [that it] ... is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a " material" fact. Id. Accordingly, " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be " genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the nonmovant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record— including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence— in support of her position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. FED.R.CIV.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass'n of Flight Attendants— CWA, AFL— CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C.Cir.2009). Moreover, where " a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the district court may " consider the fact undisputed for purposes of the motion." FED.R.CIV.P. 56(e).
When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in her favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In the end, the district court's task is to determine " whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. In this regard, the non-movant
must " do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); " [i]f the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
In recognition of the difficulty in uncovering clear evidence of discriminatory or retaliatory intent, the district court should approach summary judgment in an action for employment discrimination or retaliation with " special caution." Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), vacated on other grounds, 156 F.3d 1284(D.C.Cir.1998) ( en banc ). Be that as it may, the plaintiff is not relieved of her burden to support her allegations with competent evidence. Brown v. Mills, 674 F.Supp.2d 182, 188 (D.D.C.2009). As in any context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, then at the summary judgment stage she bears the burden of production to designate specific facts showing that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009). Otherwise, the plaintiff could effectively defeat the " central purpose" of the ...