United States District Court, District of Columbia
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE
Granting Defendant’s Motion to Dismiss and Motion for Summary Judgment
Edna Doak brings this employment discrimination action against Jeh Johnson, the Secretary of Homeland Security (“Department”), in his official capacity. Ms. Doak alleges that her employer, the United States Coast Guard (“USCG”),  discriminated against her, and retaliated against her on the basis of her disabilities in violation of section 501 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 791, et seq. The Department moved to dismiss for failure to exhaust certain claims and also moved for summary judgment on all claims. For the reasons that follow, the Court will grant the Department’s motion on both grounds.
II. FACTUAL BACKGROUND
Edna Doak was employed as a Program Analyst for the United States Coast Guard from November 2007 through August 2009, and as a Management Program Analyst from August 2009 through October 2010. Compl. ¶¶ 5-6, ECF No. 1. Her day-to-day responsibilities were to support the Surface Program, which included “[w]atching the budget, preparing obligation plans, working with the program manager, doing procurement requests, ” and “[m]eeting with the program manager and the support team” to plan for the building of boats. Doak Dep. 21:24-25, 22:1-9, ECF No. 16-13. Her position required frequent interaction with others. See Def.’s Resp. to Interrogatory 3, ECF No. 16-1.
Ms. Doak’s scheduled start time at work was 8:15 a.m. See Def.’s Ex. 27, ECF No. 14-20 (“[m]y start time since 26 November 2007 has been 0815.”); Def.’s Ex. 24, ECF No. 14-19. This was one of the later start times of anyone on her team. See Souther Dep. 49:12-15, ECF No. 14-3; Cohen Dep. 64:16-19, ECF No. 14-2. The USCG’s Acquisition Directorate Standard Operating Procedure defines the designated working hours as “normally the hours between 0600 and 1800 Monday through Friday. The CG-9 directorate is closed on weekends and government holidays.” See Def.’s Ex. 7 ¶5.f, ECF No. 14-7. The USCG policy also allowed for flexible hours, but stated that “[w]ork must be performed between the hours of 0600-1800, with all CF-9 employees/members present during the core hours of 0930-1030 and 1330-1430, Monday through Friday.” See Id . ¶ 7(a)(1).
Ms. Doak suffers from hypothyroidism and depression. She was diagnosed with both of these in 1993. Doak Decl. ¶¶ 9, 10, Pl.’s Ex. A, ECF No. 17-1. In June 2009,  Ms. Doak was in a car accident where she alleges that she “suffered closed head trauma.” Doak Decl. ¶ 6. As a result, she began to suffer from migraines, various bodily pains, and obstructive sleep apnea. Doak Decl. ¶ 8. In August 2009, Ms. Doak submitted a request for intermittent leave under the Family and Medical Leave Act (“FMLA”) because of the medical problems that resulted from her car accident. Greg Cohen, her supervisor, approved of that leave in September 2009. Def.’s Statement Undisputed Facts ¶ 7, ECF No. 16. Mr. Cohen was Ms. Doak’s first-line supervisor; her second-line supervisor was Rory Souther, Chief of Acquisition Resources Management. Id. ¶¶ 2-3.
Around December 2009, Mr. Cohen met with Ms. Doak to discuss her inability to work a nine-hour shift and discuss the fact that she was absent from work a lot due to her illness. See Def.’s Ex. 6 at 1-2, ECF No. 14-6, Def.’s Ex. 8 at 6, ECF No. 14-8. On January 19, 2010, Mr. Cohen issued an Employment Status Memorandum requesting that Ms. Doak return to full-time duty immediately because she had nearly exhausted her FMLA leave, and her absences were disrupting the work routine and having a negative impact on her projects. See Def.’s Ex. 9 ¶ 2, ECF No. 14-9. In that letter, he explained that as of January 19, 2010, Ms. Doak had used 11.5 weeks of FMLA leave, and only had 2.5 days remaining, and that she currently had negative leaves balances of 233 hours of sick leave and negative 35.15 hours of annual leave. Id. ¶ 3. He further explained that Ms. Doak’s “excessive absences and continued failure to submit appropriate requests for leave in advance cannot continue to be excused and may result in disciplinary action taken against” her. Id. ¶ 4.
Despite this letter, Ms. Doak was absent without leave (“AWOL”) for several hours each on January 25, 2010, and January 26, 2010. On January 25, 2010, Mr. Cohen wrote another memorandum to Ms. Doak explaining that she had exhausted her FMLA leave and that she had to return to full-time duty status. See Def.’s Ex. 11, ECF No. 14-11. On February 22, 2010, Mr. Cohen officially reprimanded Ms. Doak by letter for being AWOL on January 25 and January 26, 2010. See Def.’s Ex. 12, ECF No. 14-12. However, the Department agreed to hold the official reprimand letter in abeyance so that Ms. Doak could provide medical documentation to support her absences (1) unrelated to her FMLA leave; (2) her AWOL absences on January 25 and 26, 2010, and (3) her pending or outstanding leave requests related to medical issues. See Def.’s Ex. 13, ECF No. 14-13. On March 24, 2010, Mr. Cohen submitted a request for medical documentation to Ms. Doak, because the documentation she had provided, see, e.g., Def.’s Ex. 14, ECF No. 16-4, did not support her “absenteeism nor did it clearly address a diagnoses or whether [her] medical conditions require reasonable accommodations.” Def.’s Ex. 15, ECF No. 14-14.
On April 16, 2010, Ms. Doak provided medical documentation to Mr. Cohen through her doctor, Dr. Elizabeth P. Berbano. See Def.’s Ex. 16, ECF No. 16-5. In Dr. Berbano’s letter, she explained that Ms. Doak suffered from various impairments such as major depressive disorder, obstructive sleep apnea, hypothyroidism, and migraines. See Id . She also recommended that Ms. Doak be given the following “accommodations to facilitate increased work or productivity: (a) telecommuting from home, (b) full-spectrum light for her work space, ” “(c) anti-glare computer screen (glare precipitates migraines), (d) work in an area in which she is not subject to cold air currents that cause her muscle tension in the neck and head, ” “(e) consideration for adjustment of work schedule from 11 AM to 7 PM because of the difficulty of arising in the morning, ” and “(f) consideration for the option of weekend hours to make up for weekday hours missed.” Id.
The Coast Guard’s Division of Operational Medicine and Medical Readiness reviews requests for accommodations made by civilian employees. Def.’s Statement Undisputed Facts ¶ 21, ¶ 35. Dr. Erica Schwartz, a physician in the Division of Operational Medicine evaluated the April 16, 2010 letter from Dr. Berbano and recommended to Mr. Cohen that the following accommodations be provided: (1) the addition of fluorescent light filters to existing lights, (2) an anti-glare filter for the computer monitor, (3) use of sunglasses or anti-glare glasses, (4) noise-canceling headsets, and (5) a dark, private area for use when medically necessary. See Def.’s Ex. 17,  ECF No. 16-6. Dr. Schwartz found the requests for telecommuting, a later start time, and weekend hours to be medically unsupported, so she did not recommend those accommodations to Mr. Cohen. See Schwartz Dep. at 12:12-13:14, ECF No. 16-15.
On May 6, 2010, Mr. Cohen provided Ms. Doak with “a noise cancelling headset and anti-glare screen for [her] computer screen, permitted her to wear sunglasses in the office as needed, asked that three of the overhead lights directly above her desk be turned off, and identified break rooms that the Plaintiff could use as necessary for medical reasons.” Def.’s Statement Undisputed Facts ¶ 40. Mr. Cohen did not provide Ms. Doak with an 11:00 a.m. start time because, he explained, “her position with an acquisition project required daily and frequent interaction with project staff, other business managers, resource staff, and numerous agencies, ” and an 11:00 a.m. start time “would place the project and resource office in a hardship position.” Id. ¶ 43. See also Def.’s Ex. 19 ¶ 4, ECF No. 16-7 (“Your billet is a matrix position with a Coast Guard acquisition project, which requires you to interact daily, and frequently with the project staff, other business managers and resource staff and numerous external agencies. I do not believe you will be able to meet those obligations with a work schedule that does not have you arrive until 1100 daily and therefore would place the project and resource office in a hardship position by requiring personnel from other projects to attend these meetings on the behalf of the resource office.”).
In response, on May 21, 2010, Ms. Doak wrote to Mr. Cohen, explaining that she would prefer a 10:00 a.m. start time, but would “work toward a 9:00 a.m. arrival” time. See Def.’s Ex. 22, ECF No. 16-8. Mr. Cohen replied via email on June 1, 2010, explaining that a 10:00 a.m. start time was not acceptable; he instead offered her a 9:00 a.m. start time. See Def.’s Ex. 23, ECF No. 14-18. Ms. Doak did not accept a 9:00 a.m. start time at that time. Doak Dep. 237:7- 18. As such, her scheduled start time remained 8:15 a.m. See Doak Dep. 238:2-9.
By the end of May 2010, Ms. Doak was arriving to work anywhere between 10:00 a.m. and Noon. See Doak Dep. 271:3-10. Mr. Cohen issued another letter of reprimand to her on May 24, 2010, based on more than 30 AWOL hours that she had incurred since her February 2010 letter of reprimand. See Def.’s Ex. 24, ECF No. 14-19.
On July 16, 2010, Ms. Doak submitted another letter from Dr. Berbano “clarifying” her April letter. See Def.’s Ex. 25, ECF No. 16-9. In that letter, Dr. Berbano modified her recommended start time to 9:30 a.m. Id. Dr. Brent Pennington responded to that request on July 20, 2010, stating that Dr. Berbano’s letter did not provide medical justification for “an arbitrary start time of 0930 instead of 0830 or 0900.” Def.’s Ex. 26, ECF No. 16-10. On July 23, 2010, Ms. Doak agreed to a 9:00 a.m. arrival time at work. Def.’s Ex. 27, ECF No. 14-20. See also Souther Dep. 13, ECF No. 14-3. Despite that, she was still “unable to arrive at work on time.” Def.’s Statement Undisputed Facts ¶ 61. In addition, Ms. Doak was also AWOL on July 27, 28, 29, 30, and August 2, 3, and 4, 2010. Id. ¶¶ 66-67. From January 31 to August 9, 2010, Ms. Doak had missed approximately 52 percent of her scheduled work hours. Id. ¶ 64. See also Def.’s Ex. 32 at 1, ECF No. 14-24.
On August 9, 2010, Mr. Cohen issued a notice to Ms. Doak of her proposed removal from her position due to (1) her “medical inability to perform the essential duties of [her] position, due to various medical reasons, which have caused [her] to be unable to maintain [her] regular work schedule, ” and (2) her hours in AWOL status. Id. ¶ 1. The union responded to the Notice of Proposed Removal on behalf of Ms. Doak on August 31, 2010. See Def.’s Ex. 33, ECF No. 14-25. On September 30, 2010, after considering the evidence before him, Mr. Souther determined that Ms. Doak’s removal “was warranted to promote the efficiency of the service.” See Def.’s Statement Undisputed Facts ¶ 68.
The plaintiff contacted an Equal Employment Opportunity (“EEO”) counselor on October 6, 2010, challenging her September 30 removal. Id. ¶ 73. The Department entered into a settlement agreement under which it agreed to allow Ms. Doak to retire effective October 31, 2010 instead of being terminated. Id. ¶ 75. See also Def.’s Ex. 36, ECF No. 14-28. On February 22, 2011, Ms. Doak filed a formal complaint against the Department, and on June 19, 2012, the Department issued a final agency decision, in which it found that Ms. Doak “failed to prove by a preponderance of the evidence that USCG discriminated against” her. See Pl.’s Ex. 7, ECF No. 17-1.
Ms. Doak then filed the instant action, alleging that the Department discriminated against her by “discharging her from her employment because of her disability, ” and by failing to reasonably accommodate her disability. See Compl. Counts I & II. She also alleges that the Department retaliated against her by terminating her for requesting reasonable accommodations in violation of the Rehabilitation Act. See Compl. Count III. The Department moved to dismiss for Ms. Doak’s failure to exhaust her reasonable accommodation claims and certain disparatetreatment ...