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Ellison v. Napolitano

United States District Court, District of Columbia

November 4, 2012

Kim ELLISON, Plaintiff,
Janet NAPOLITANO, Secretary, Department of Homeland Security, Defendant.

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[Copyrighted Material Omitted]

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Alan Lescht, Alan Lescht & Associates, Washington, DC, for Plaintiff.

Andrea McBarnette, U.S. Attorney's Office, Washington, DC, for Defendant.

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BERYL A. HOWELL, District Judge.

The plaintiff, Kim Ellison, has sued the defendant, Janet Napolitano, in her official capacity as Secretary of the U.S. Department of Homeland Security, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. for discrimination based on her sex and disability and for reprisal for her prior protected activity. See Complaint (" Compl." ), ECF No. 1, ¶ 4. Pending before the Court is the defendant's motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6), part of the plaintiff's claims on grounds that the plaintiff failed to exhaust her administrative remedies. For the reasons set forth below, this motion is granted in part and denied in part.


The plaintiff worked as an Information Technology Specialist at the United States Coast Guard (USCG) at its headquarters in Washington, D.C., from about May 2006 to November 21, 2010, when she was terminated. Compl. ¶¶ 7, 37.

Less than four months after her employment began, the plaintiff " entered into a telework agreement," permitting her to work from home " as needed." Id. ¶ 8.[1] While this arrangement continued " without any modification[ ]" for nearly three years under two different first line supervisors, the plaintiff's second first line supervisor rescinded the plaintiff's telework agreement on May 20, 2009 on the basis " that Plaintiff's performance was unsatisfactory." Id. ¶¶ 8-10, 16.[2]

In the preceding three weeks, from May 5 to May 19, 2009, the plaintiff claims that she suffered severe back pain and, consequently, took leave on May 5, visited medical personnel on May 8 (" her regular day off" ) and 11, and worked from home on May 7 and 11, per the telework agreement.[3] Id. ¶¶ 11-14. The plaintiff states that " [d]uring this period, [her] medical condition worsened dramatically and she lost function in her leg." Id. ¶ 14. " Despite [her] serious medical condition, [her first line supervisor] ordered her to return to work on May 20, 2009 or be subject to AWOL and other disciplinary actions." Id. ¶ 15.

Despite rescission of the telework agreement and being cautioned by her supervisor that she had to return to work on May 20, 2009, see id., the plaintiff apparently continued to telework through June 20, 2009, see id. ¶ 22 (indicating that her first

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line supervisor placed her on AWOL for 80 hours during the pay period of June 7 to June 20, 2009). The plaintiff's requests for telework as a reasonable accommodation for her back pain were explicitly denied on May 20, 2009 by her first line supervisor, see id. ¶ 17, and not expressly responded to by a more senior supervisor, see id. ¶ 19.[4]

The plaintiff's first line supervisor reiterated denial of permission for the plaintiff to telework on June 9, 2009, on which date the supervisor also issued a Letter of Requirement, stating that " [the p]laintiff had failed to adhere to agency policies regarding use of annual leave and sick leave." Id. ¶¶ 20-21. The first line supervisor also " placed Plaintiff on AWOL for 17 hours during pay period 11 (May 22, 2009 to June 6, 2009) and for 80 hours during pay period 12 (June 7, 2009 to June 20, 2009)," id. ¶ 22, and " announced that he would no longer advance Plaintiff leave when she needed it for medical issues after she had exhausted her sick and annual leave" because he did not have the " reasonable expectation that the [plaintiff] would return to work," id. ¶ 23. The plaintiff also requested that she be allowed to work at an alternate work site closer to home, but the first line supervisor denied that request. See id. ¶ 24.

The plaintiff was out of work for approximately four months and returned to work on about September 1, 2009. See id. ¶¶ 27-28. The plaintiff claims that, as a result of her first line supervisor not accommodating the plaintiff's requests for reasonable accommodation, she was not paid for those four months, and " almost lost her home" as a result of being out of work. Id. The plaintiff also claims that her agency " failed to engage in interactive dialogue" with the plaintiff and that she was treated differently than a " male IT Specialist with a medical condition similar to Plaintiff's," who, " [p]rior to October or November 2010 ... was allowed to telework whenever he wanted as long as he called in." Id. ¶¶ 25-26.

On March 31, 2010, the plaintiff received an " unsatisfactory performance evaluation," id. ¶ 29, which the plaintiff claims resulted from her inability to work for four months and was " directly caused by the unlawful acts of the Defendant" that " prevented her from completing assignments that she would have been able to complete had she been accommodated," id. ¶ 30. The plaintiff also claims that " any performance deficiencies were attributable" to the agency's failure to provide ergonomic equipment she requested. Id.

On May 12, 2010, the plaintiff contacted a counselor at the Equal Employment Opportunity Office (EEO). See id. ¶ 31. On June 22, 2010, the defendant issued a notice of unacceptable performance and opportunity to improve (PIP) to the plaintiff. See id. ¶ 33. The plaintiff notes that, during her 60-day improvement period, " [s]ome of the ergonomic equipment [she requested as a reasonable accommodation, such as " Dragon Naturally Speaking" software and a special desk,] were still not fully in place." Id. ¶ 34. Furthermore, " [a]lthough [the plaintiff's first line supervisor] was supposed to meet with Plaintiff during the PIP on a biweekly basis, he met with Plaintiff only three ... times" and " did not tell Plaintiff about areas that still needed improvement until their last meeting on August 20, 2009." Id. ¶ 35.

The plaintiff requested of the Acting Division Director, on or about September

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10, 2010, that she be allowed to telework on September 16 and 17, 2010 " so she could go to her doctor, get new pain medications, get acclimated to the pain medications and get her work done." Id. ¶ 36. The Acting Division Director agreed to the request but the next day rescinded his approval based on the first line supervisor's instructions. See id.

On or about September 28, 2010, the defendant issued a Notice of Proposed Removal, which resulted in the plaintiff being removed from her position on November 21, 2010. See id. ¶ 37.

The plaintiff then filed a Complaint in this Court, claiming sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count 1); denial of reasonable accommodation and discharge because of disabilities, in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. (Counts 3 and 4), and retaliation for engaging in protected activities (Counts 2 and 5). The plaintiff claims that she " has sustained damages as a result of defendant's unlawful conduct ...

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