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Bonnette v. Shinseki

United States District Court, District of Columbia

November 30, 2012

Cathryn BONNETTE, Plaintiff,
v.
Eric K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant.

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Morris Eli Fischer, Daniel E. Kenney, Ethan Sapperstein, Law Office of Morris E. Fischer, LLC, Silver Spring, MD, for Plaintiff.

Lexander Daniel Shoaibi, U.S. Attorney's Office, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff Cathryn Bonnette brings this action against defendant Eric K. Shinseki, Secretary of the U.S. Department of Veterans Affairs (" VA" ), alleging that she was discriminated against on the basis of her

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disability (Count I) and retaliated against after she filed EEO complaints against her employer (Count II). Bonnette, who is blind, also charges in Count I that the agency failed to reasonably accommodate her disability.

The complaint purports to bring both counts under the Americans with Disability Act of 1990, 42 U.S.C. § 12101, et seq. (2006) (" ADA" ). See Compl. [Dkt. # 1] ¶¶ 110-13 (First cause of action: disability discrimination and failure to accommodate); id. ¶ 119 (Second cause of action: " Defendant's actions constituted a violation of retaliation under the ADA." ). But the " ADA does not apply to employees of the federal government because the federal government is not considered an ‘ employer’ under the ADA." Klute v. Shinseki, 797 F.Supp.2d 12, 17 (D.D.C.2011); see also 42 U.S.C. § 12111(5)(B)(i) (specifically excluding " the United States" from the definition of " employer" ). To protect federal workers, Congress incorporated the ADA's anti-discrimination and anti-retaliation provisions into the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. (2006) (" Rehabilitation Act" ). See Woodruff v. Peters, 482 F.3d 521, 526 (D.C.Cir.2007); see also 29 U.S.C. § 791(g); 42 U.S.C. § 12112(a); Marshall v. Potter, 634 F.Supp.2d 66, 73 (D.D.C.2009), citing 29 U.S.C. § 794(d). Because the Rehabilitation Act incorporates the ADA, it is " the exclusive remedy for employment discrimination based on a disability for federal employees." Raines v. DOJ, 424 F.Supp.2d 60, 64 (D.D.C.2006) (internal citations and quotation marks omitted). Therefore, as both parties have done in their briefing, the Court will assess Bonnette's claims that she was discriminated and retaliated against on the basis of her disability as if they had been brought under the Rehabilitation Act. See, e.g., Def.'s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 20] (" Def.'s Mem." ) at 5-8; Pl.'s Mem. in Opp. to Def.'s Mot. for Summ. J. [Dkt. # 24] (" Pl.'s Opp." ) at 7-9.[1]

In her complaint, Bonnette recites a series of factual allegations that range from petty slights— the disparagement of Bonnette's Christmas tree— to significant adverse events, including her termination from the agency, and she premises both causes of action on those facts. The VA seeks judgment on the pleadings, or, in the alternative, summary judgment on all counts. Def.'s Mot. for J. on the Pldgs or, in the alternative, for Summ. J. [Dkt. # 20] (" Def.'s Mot." ). The VA contends that many of the actions that Bonnette characterizes as discriminatory and/or retaliatory do not constitute actionable adverse employment actions within the meaning of the Rehabilitation Act, and that any adverse employment actions that were taken can be explained by legitimate, nondiscriminatory,

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and non-retaliatory reasons. Def.'s Mem. at 21-41. It further argues that the agency provided Bonnette with the reasonable accommodations that she required, id. at 14-21, and that the circumstances presented in the complaint do not rise to the level of severity necessary to make out a hostile work environment claim, id. at 41-43.[2] While the Court does not wish to minimize the substantial obstacles that Bonnette was required to overcome in her efforts to meet the demands of her job without the benefit of sight, it concludes that the undisputed facts support the VA's contentions, and it will grant motion for summary judgment on all counts.

BACKGROUND

The complaint sets out the fact that plaintiff Cathryn Bonnette is " totally blind" and thus disabled. Compl. ¶ 22. In March 2007, the VA hired her under Schedule A, a special hiring authority for individuals with targeted disabilities, subject to a two-year probationary period. EEO Affidavit of Ralph Torres (July 7, 2009), Ex. 4 to Def.'s Mot. (" Torres EEO Aff." ) at 348. After the two-year probationary period, the VA could decide to retain Bonnette or terminate her employment with the agency. SF-50 Excepted Appointment, Ex. 7 to Def.'s Mot.; Tracey Therit Deposition (Oct. 26, 2011), Ex. 6 to Def.'s Mot. (" Therit Dep." ) at 13:16-14:1, 16:4-12. Bonnette was terminated at the conclusion of the two years, Nonconversion of Schedule A Appointment, Ex. 16 to Def.'s Mot. (" Nonconversion Notice" ), but she was reinstated shortly thereafter for another period that also eventually concluded with her termination, Bonnette Deposition (Aug. 11, 2011), Ex. 1 to Def.'s Mot. (" Bonnette Dep." ) at 76:14-19, 176:4-6. Bonnette ascribes these actions to discrimination and retaliation, and she alleges that the agency did not make the reasonable efforts necessary to accommodate her disability and enable her to succeed. While the complaint does not always include the dates that could serve as helpful signposts, it appears that the general chronology of events is as follows:

I. Two Year Probationary Period: March 2007 to February 2009

During her tenure with the agency, Bonnette served as an ADR program specialist in the VA's Office of Resolution Management (" ORM" ). SF-50 Excepted Appointment, Ex. 7 to Def.'s Mot. ORM does not mediate disputes itself, but it arranges for mediations to take place by performing such tasks as scheduling. Therit EEO Affidavit (June 30, 2009), Ex. 3 to Def.'s Mot. (" Therit EEO Aff." ) at 297-98; Def.'s St. of Material Facts as to Which there is no Genuine Dispute [Dkt. # 20-1] (" Def.'s St. Facts" ) ¶ 5.[3] Bonnette was responsible

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for working with other ADR groups, producing materials that promoted the use of ADR services, managing the drafting of a VA-wide handbook for certification of ADR neutrals, and coordinating teleconferences for VA certified mediators. Position Descriptions, Exs. 9-10 to Def.'s Mot.; Bonnette Dep. at 58:8-59:1, 64:6-8. Specifically, she was responsible for arranging and identifying topics and speakers for monthly teleconferences for the mediators. Therit Dep. at 151:14-19.

Rafael Torres, the Deputy Assistant Secretary for Resolution, who served as Bonnette's immediate supervisor from March 2007 to May 2008, rated Bonnette's performance as " fully successful" during that period. Bonnette Performance Appraisals, Ex. 23 to Def.'s Mot. at 408-13. Based on that rating, Bonnette was promoted from GS-11 to GS-12 in March 2008, and she continued to serve as an ADR program specialist. Bonnette Dep. at 52:16-17. In May 2008, Tracey Therit, the ADR Director, became Bonnette's immediate supervisor. Id. at 93:8-10; Therit Dep. at 10:14-16. The record indicates that this did not turn out to be a successful pairing for Bonnette.

Initially, Bonnette requested reassignment to a different supervisor and asked to become an EEO counselor. Bonnette Dep. at 119:16-21; Def. St. Facts ¶ 41. The VA has stated that it denied this request because Bonnette was not qualified for the EEO counselor position. Def.'s St. Facts ¶¶ 42-45. Based in part on input from Torres, Therit rated Bonnette as " fully successful" again in September 2008. Bonnette Performance Appraisals, Ex. 23 to Def.'s Mot. at 414-22. But during this evaluation, Therit also informed Bonnette of areas in which her performance needed improvement. Therit EEO Aff. at 316.

On December 10 and 11, 2008, Therit contacted Human Resources about whether the VA should retain Bonnette after her probationary period. Ex. 27 to Def.'s Mot. A few days later, in a December 16, 2008 email, Therit informed Bonnette of specific deficiencies in her performance and stated that Bonnette might not be retained after the probationary period. Ex. 28 to Def.'s Mot. In the email, Therit also asked Bonnette to complete a series of tasks by the end of the month. Id. According to the VA, Bonnette failed to accomplish a number of them, including coordinating central office ADR awareness training, coordinating mediator teleconferences on a quarterly basis, updating the agency's website, and revising a document on tips for preparing settlement agreements. Therit EEO Aff. at 317.

Bonnette admits that she failed to update the ADR website in December 2008, failed to draft a document containing tips for settlement agreements, missed other deadlines, and made typographical errors. See Bonnette Dep. at 142:20-23, 144:19-145:21. However, she asserts that Therit prevented her from accomplishing these tasks by refusing to provide the necessary approvals. Id. at 140:25-141:11.

In January 2009, Bonnette contacted an EEO counselor, and she ultimately alleged

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sixteen acts of discrimination based on her disability and age. Bonnette 2009 EEO Claims, Ex. 21 to Def.'s Mot. She did not allege retaliation at that time. Id., Def.'s St. Facts ¶ 81. In February 2009, the VA decided to not retain Bonnette after her two-year probationary period. See generally Nonconversion Notice. It placed her on paid administrative leave for two weeks until her February 27, 2009 termination date. Pl.'s Opp. at 2. In addition to a number of alleged general performance deficiencies, the VA identified the following reasons for Bonnette's termination in the Nonconversion Notice:

A. Disclosure of Confidential Information

In February 2008, while scheduling a mediation, Bonnette failed to edit two attachments and disclosed the case number and names of other VA employees who previously participated in the mediation. Nonconversion Notice at 2. Therit advised Bonnette of her error, reported the privacy violation to the ORM Privacy Officer, and asked Bonnette to contact all recipients and ensure they deleted the attachments. Id. Therit also asked to review such emails in the future before Bonnette sent them and Bonnette completed General Privacy Awareness Training at that time. Id.

On December 5, 2008, while scheduling another mediation, Bonnette emailed party information to a group of thirty-one qualified VA mediators. Id. Therit informed Bonnette that party information should only go to the VA employee who actually volunteers to mediate a case and not to all VA mediators. Id. Bonnette stated that she would follow this procedure in the future. Id. Again, on December 9, 2008, Bonnette sent information regarding another VA employee's mediation while scheduling a mediation session. Id. Bonnette stated that she did not know that information from another case was at the beginning of the email string and Therit discussed various procedures that would help avoid this error in the future. Id. Therit reported the third privacy violation to the ORM Privacy Officer and instructed Bonnette to take steps to remedy the situation. Therit EEO Aff. at 329. In response to Therit's inquiry as to why Bonnette did not ask her to review the email before she sent it, Bonnette stated that she did not have time. Id.

B. Improper Use of a Government Travel Card

Bonnette held a government travel card at least until she was terminated in February 2009. Def.'s St. Facts ¶ 52, accord Pl.'s St. of Material Facts in Dispute [Dkt. # 25-1] (" Pl.'s St. Facts" ) ¶ 49. In April 2008, she received ORM's Government Travel Credit Policy, which states that the government issued card should only be used on official travel. Therit EEO Aff. at 311. But Bonnette used her government travel card at a working lunch in the District of Columbia in August 2008. Bonnette Dep. at 134:14-135:4. She explains that she accidentally used the government card because she could not distinguish between her personal credit card and the government issued card. Id. Moreover, she avers that she was confused about the appropriate use of the card because the credit card policy was difficult to navigate using the Job Access With Speech (JAWS) technology installed on her computer to accommodate her disability. Id. Bonnette was admonished on August 29, 2008 for the unauthorized use of the credit card in violation of VA Directive 0631.1. Id. at 136:21-137:17; Def.'s St. Facts ¶ 49.

C. Failure to Attend Mandatory Training

On December 10 and 11, 2008, Bonnette was scheduled to attend mandatory Crucial

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Conversations training. Bonnette Dep. at 164:18-25. The training conflicted with holiday caroling and an open house that Bonnette wanted to attend. Id. She tried to exchange training dates with another employee but was unsuccessful. Id. at 165:2-5. Nonetheless, Bonnette skipped the training on the morning of December 11 in order to attend the caroling and holiday open house, and she sent her reader/sighted assistant in her stead. Id. at 166:17-167:13. She asserts that she only missed two hours of the training and that her prior supervisor, Torres, and the trainer gave her permission to miss the training session. Pl.'s St. Facts ¶ 53. The VA disputes that assertion, noting that Bonnette simply informed the trainer that she would miss part of the training because of a Christmas party. Letter of Reprimand (Jan. 30, 2009), Ex. 15 to Def.'s Mot. (" Reprimand Letter" ) at 2. Additionally, Torres has very limited recollection of this event and does not remember giving Bonnette permission to skip the training. See Torres EEO Aff. at 369. Therit discovered Bonnette's absence on December 30, 2008 and reprimanded her on January 30, 2009 for " her unauthorized absence from the training and for inappropriate use of the reader/sighted assistant services." See Reprimand Letter; see also Def.' St. Facts ¶ 53.

II. Reinstatement: March 2009 to March 2010

On March 17, 2009, the VA reinstated Bonnette to her former position and placed her under Therit's continued supervision. Therit EEO Aff. at 326-27. Bonnette had ninety days to demonstrate successful performance. Therit Dep. at 150:9-11. As part of the reinstatement, Bonnette developed a return to work plan which required her to draft timelines for her assignments. Id. at 124:11-15. Pursuant to the plan, she was not allowed to begin work on a project until a completed timeline was submitted to Therit and approved. Id. at 144:2-6. There were other VA employees at the time who were also required to use timelines if they were working on certain projects. Id. at 127:5-128:12. Therit and Bonnette also created a joint performance plan that included timelines for Bonnette's accomplishment of specified employment goals. Id. at 135:16-137:4.

But Bonnette's second stint at the VA did not go well either, and she complains here about a series of discomfiting circumstances. She alleges that when she returned to the agency in March of 2009, the files and folders saved on her computer had been renamed and scattered so that she could not find them. Compl. ¶ 101. Rosa Franco, Associate Deputy Secretary for Dispute Resolution Management and Therit's immediate supervisor, asked Bonnette to document the problems, and she assigned Glenn Thomas, ORM Information Technology Program Manager to help resolve them. Def.'s St. Facts ¶ 69, accord Pl.'s St. Facts ¶ 69. Bonnette also alleges that after she returned in March 2009, it took two weeks to obtain the data watch card she needed to access locked areas, and therefore, she had to request a security escort each time she used the restroom. Def.'s St. Facts ¶ 70, accord Pl.'s St. Facts ¶ 70. Bonnette initially obtained a card from the building engineer, but Therit required her to return it and request another from the Program Support Assistant who tracked the cards by card number and reported any problems to the card provider. Id. No ORM employee was permitted to receive a data card from the building engineer. Id.

Upon her reinstatement, Bonnette was assigned a new sighted reader, Adrienne Leal. Bonnette did not approve of Leal, and she stated that Leal read in a " stilted manner", paraphrased, subvocalized, and wore irritating perfume. Def.'s St. Facts

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¶ 31; Pl.'s Opp. at 19. Therit accepted Bonnette's feedback and worked with Leal to resolve these issues. Email Correspondence Between Therit and Bonnette (Apr. 30-May 4, 2009), Ex. 15 to Pl.'s Opp. Another blind employee used Leal's services and made no complaint about the quality of her performance. Defendant's Answers to Plaintiff's Interrogatories, Ex. 11 to Def.'s Mot. at 19. But Bonnette remained unsatisfied and continued to request a new sighted reader. Pl.'s Opp. at 18-20.

On June 15, 2009, Bonnette sent an email to Therit expressing her dissatisfaction with Leal and with Therit's alleged interference with attempts to train her: " Tracy ... My response to your message is that I am researching my options for supervision of the reasonable accommodation of a reader/sighted assistant. My understanding is that it is an EEO Violation to be deprived of the ability to provide supervision and direction to my reader/sighted assistant...." Ex. 7 to Pl.'s Opp. The VA did not replace Leal but she left voluntarily in December 2009. Therit Dep. at 67:2-15.

On July 24, 2009, the VA placed Bonnette on a Performance Improvement Plan (" PIP" ). Ex. 17 to Def.'s Mot. The PIP memorandum stated that Bonnette's performance was " less than fully successful" between April and July 2009. Id. When the PIP concluded in November 2009, Therit reported that Bonnette was not performing at a fully successful level and determined that the VA should not retain her. Letter from Therit to Bonnette (Nov. 16, 2009), Ex. 18 to Def.'s Mot. The VA terminated Bonnette effective March 22, 2010. Proposed Removal Letter (Mar. 22, 2010), Ex. 19 to Def.'s Mot.

When Bonnette left the VA, Therit submitted Bonnette's employment badge to the badging office. Therit Dep. at 197:8-12. The Deputy Assistant Secretary for Security and Law Enforcement issued a security alert warning barring Bonnette's admission to the building. Alert Notice (Mar. 22, 2010), Ex. 20 to Def.'s Mot. Bonnette asserts that Therit was behind the issuance of this alert, Pl.'s Opp. at 23, but the VA denies Therit's involvement, Def. St. Facts ¶ 79. Bonnette filed her second EEO complaint on June 9, 2010, asserting that she was terminated based on retaliation, disability, and age. 2010 Notice of Accepted Claims (Jan. 4, 2011), Ex. 22 to Def.'s Mot.

III. Accommodations of Bonnette's Disability

In her first cause of action, Bonnette alleges that she requested such accommodations as a seeing eye dog, an " appropriate reader," the JAWS computer software, and " all other scanning and adaptive equipment," and that the VA failed to reasonably accommodate her. Compl. ¶¶ 112-13. She raises concerns about how the agency handled her use of the bathrooms and its attitude towards her service animal. Id. ¶¶ 90, 112. But the VA has come forth with evidence to show that it provided assistive technology and sighted readers, and it made the arrangements necessary to enable Bonnette to be accompanied by her service dog. Def.'s St. Facts ¶¶ 21-39. The assistive technology included the ...


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