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Floyd v. Lee

United States District Court, D. Columbia.

March 31, 2015

MONA K. FLOYD, Plaintiff,

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MONA K. FLOYD, Plaintiff, Pro se, Alexandria, VA.

For OFFICE OF REPRESENTATIVE SHEILA JACKSON LEE, Defendant: Kimberly Carey Williams, LEAD ATTORNEYS, Gloria Lett, U.S. HOUSE OF REPRESENTATIVES, Office of House Employment Counsel, Washington, DC.

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Re Document Nos.: 49, 53


RUDOLPH CONTRERAS, United States District Judge.


In 2010, Mona K. Floyd served as Legislative Director and Chief Counsel in the office of Congresswoman Sheila Jackson Lee.[1] In this action, Ms. Floyd, who is proceeding in forma pauperis, alleges that Rep. Jackson Lee's office failed to accommodate her monocular vision, subjected her to a hostile work environment, and retaliated against her for requesting an accommodation, all in violation of the Congressional Accountability Act. She also alleges that the office's deliberate failure to accommodate her impairment resulted in her constructive discharge. The office of Rep. Jackson Lee moves to dismiss the action on the basis that the " allegation of poverty" in Ms. Floyd's application for in forma pauperis status is " untrue," 28 U.S.C. § 1915(e)(2)(A), and, in the alternative, for summary judgment on all claims. Because the Court concludes that Ms. Floyd's " allegation of poverty" is not " untrue" and that misstatements in her in forma pauperis application were neither material nor made in bad faith, it denies the motion to dismiss. But because Ms. Floyd has failed to create genuine disputes of material fact as to certain elements of each of her claims, the Court grants Rep. Jackson Lee's motion for summary judgment in its entirety.

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From birth, Ms. Floyd has suffered from monocular vision, which is the inability to use one eye. See Floyd Dep. at 150:6--22.[3] This condition reduces her reading speed and causes her eye strain, eye fatigue, and headaches when reading for longer periods. Id.

In January 1998, Ms. Floyd obtained her first and only medical documentation of her impairment: To support her request for a testing accommodation for the 1998 California bar examination, Ms. Floyd had Dr. Mitchell C. Shultz, an ophthalmologist, complete the State Bar of California's physical disability verification form. See id. at 152:6--10, 154:20--22; see generally Cal. bar exam form, Def.'s Ex. 5, ECF No. 53-4. On the form, Dr. Shultz indicated that Ms. Floyd's disability is " monofixation syndrome," another term for monocular vision. Cal. bar exam form 1, Def.'s Ex. 5; see also Floyd Dep. at 150:18--20. In explaining the impairment's impact, Dr. Shultz wrote that " this deficiency in binocular vision may be impacting [Ms. Floyd's] ability to read fast secondary to alternation between the eyes and fatigability." Cal. bar exam form 1, Def.'s Ex. 5. He also indicated that Ms. Floyd's impairment is " permanent." Id.

On the form's final page, Dr. Shultz recommended that Ms. Floyd be allowed specific amounts of additional time on certain portions of the bar examination. Explaining his " [r]easons and basis," he wrote that Ms. Floyd " has a disability in reading secondary to alternation between eyes which prevents fluidity in reading thereby decreasing her speed of reading between 20--30 percent." Id. at 3. When questioned about the figures " 20--30 percent" during her deposition, Ms. Floyd candidly testified:

Oh, I wasn't measuring whether [sic] 20 percent or 30 percent less. The doctor is making the estimate here. I can't judge how much faster or slower I may be reading because of my vision. I just know that, in general, if I'm in a group and we're asked to read certain things, I see that others are finished and I'm still reading. That's what made me say to [Dr. Shultz], " I'm not finishing things." He said, " You're relying on the one eye, and that's causing you to slow down." When I am sitting, working. .., I don't say I'm reading 20 percent slower here or 30 percent slower here. I just never did anything like that.

Floyd Dep. at 168:5--17.

In September 2006, Ms. Floyd joined the Washington, D.C., office of Rep. Jackson Lee as a Congressional Black Caucus Foundation fellow. See id. at 40:9--18. About a month before Ms. Floyd's fellowship

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began, the Foundation informed the office by memorandum that Ms. Floyd had " a vision disability" and would " need to take special precautions to reduce the strain on her eyes." Musgrove memo of Aug. 1, 2006, Def.'s Ex. 7, ECF No. 53-5; see also Floyd Dep. at 50:2--14. The memorandum listed specific accommodations that Ms. Floyd had requested, including voice recognition software and text enlargement capabilities. See Musgrove memo of Aug. 1, 2006, Def.'s Ex. 7. In support of these requests, Ms. Floyd had submitted to the Foundation a copy of the disability verification form completed by Dr. Shultz. See Floyd Dep. at 57:2--6.

During her time as a fellow, Ms. Floyd's need for accommodations was satisfied, and she had a positive relationship with the Representative. See id. at 66:2--22. Soon after joining the office, she received the voice recognition software, and her computer had zoom capabilities. See id. at 53:12--17, 55:6--10. Although Ms. Floyd had expected the voice recognition software to enable her to type without using her eyes to read both the keyboard and screen, see id. at 54:2--9, 55:15--20, she soon determined that the software was more hindrance than help and had it uninstalled, though she continued to use the zoom function for at least part of the fellowship, see id. at 53:19--24, 56:6--24. Because the software did not work as expected, Ms. Floyd instead verbally requested of her direct supervisor, then-Legislative Director Gregory Berry, that she be given rest breaks and additional time to perform assignments, and he granted her request. See id. at 44:14--18, 63:8--16. Ms. Floyd rested whenever she started experiencing eye strain and headaches; by her estimate, on a daily basis, she rested about ten minutes for every three hours of intensive reading. See id. at 64:4--20, 65:3--6.

After completing her fellowship, Ms. Floyd was hired in August 2007 as the office's Director of Health Policy and Senior Legislative Assistant. See Chastang email of Aug. 6, 2007, Def.'s Ex. 10, ECF No. 53-5. She continued to have her needs accommodated, see Floyd Dep. at 87:17--25, and to enjoy a " very positive" relationship with the Representative, see id. at 85:25--86:4. Ms. Floyd observed, however, that the Representative sometimes communicated in a " very harsh" manner to other staffers and mounted " personal attacks" when she was dissatisfied with an individual's work. Id. at 86:12--23. In late 2007, Ms. Floyd resigned to pursue another professional opportunity. See id. at 90:16--19, 92:2--6.

In February 2010, Rep. Jackson Lee's Chief of Staff Leon Buck recruited Ms. Floyd to be the Representative's Legislative Director and Chief Counsel. Id. at 102:14--103:6; Buck Dep. at 8:11--16. As they discussed the position, Ms. Floyd informed Mr. Buck of her " vision limitation" and " the fact that it takes [her] longer to read." Floyd Dep. at 104:6--7. Moreover, she explained that she would accept the job only under certain conditions. See id. at 103:12--22. First, Ms. Floyd requested that the office employ at least one additional Legislative Assistant; at the time, it had two. See id. at 107:18--110:16.[4] Second, she requested that she not have primary responsibility either for issue areas assigned to other staffers or for events occurring in Houston, where the Representative's district is located; she considered such duties " nonessential," based on

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her understanding of the " scope of the position," " priorities in the office," and " past practices of the office." Id. at 112:14--117:15. Mr. Buck verbally agreed to these terms, id. at 106:13--111:9, and Ms. Floyd joined the office as Legislative Director and Chief Counsel in February 2010, see Jackson Lee letter of Feb. 22, 2010, Def.'s Ex. 13, ECF No. 53-5.

In her new post, Ms. Floyd had a wider range of legislative and supervisory responsibilities than she had in previous roles in the office. See Floyd Dep. at 119:10--21. She not only had a greater volume of work, see id. at 120:16--19, but also reported to the Representative and regularly received assignments directly from her, see id. at 124:2--13. Mr. Buck's earlier promises, moreover, did not materialize. Although there was no formal policy against taking rest breaks, Ms. Floyd's " additional work" for issue areas assigned to other staffers and for functions taking place in Houston prevented her from taking ten-minute rest breaks as she had previously done. Id. at 138:2--9. As a result, she often read " continuously" for periods longer than three hours. Id. at 136:2--139:18. Initially, however, Ms. Floyd did not personally inform the Representative of her need for accommodation. See id. at 128:19--129:11.

Ms. Floyd first mentioned her monocular vision to the Representative on April 26, 2010. See id. at 129:19--131:16. That day, after Rep. Jackson Lee assigned Ms. Floyd several tasks with a specific deadline, Ms. Floyd explained that she would delegate certain education-related tasks to the Legislative Assistant with primary responsibility for education matters. Id. at 129:19--130:7. When the Representative made clear that Ms. Floyd needed to perform the tasks herself, Ms. Floyd explained her " vision disability," her inability to use one eye, and her need for " more time" to complete the tasks and for " time to take a break." Id. at 130:8--18. In response, the Representative stated that " she didn't care anything about [Ms. Floyd's] vision disability," reiterated that she was not to delegate any work, and told her not to " take ten years to get it done." Id. at 130:19--23.

That evening, Ms. Floyd decided that although Rep. Jackson Lee had shown no concern for her disability, she would still " tr[y] to find a way to get accommodations for [her] situation and be able to delegate." Id. at 131:12--16. She accordingly sent the Representative an email with the subject line " Legislative team." See Floyd email of Apr. 26, 2010, Def.'s Ex. 16, ECF No. 53-5. The email listed several suggestions for helping the legislative team overcome " challenges" and work more efficiently, one of which was to make staff " accountable for their assigned duties." Id. Additionally, Ms. Floyd recommended " add[ing] another legislative staffer in order to carry out [the Representative's] agenda." Id. Although the email did not expressly mention Ms. Floyd's monocular vision, the suggested changes would have provided her with additional time to take rest breaks. See Floyd Dep. at 133:7--18. The record contains no evidence of any response from Rep. Jackson Lee.[5]

Subsequently, the Representative told Ms. Floyd " many times" (at least on " more than five" occasions) when giving her new assignments not to take " ten years" to complete those tasks. Id. at 171:19--172:16.[6] Each time, Ms. Floyd would remind

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the Representative of her " vision limitations" and need for " more time." Id. at 141:9--17. Despite the fact that Ms. Floyd " would often talk about . . . [her] needing rest breaks in order to prevent headaches and eye strain," the Representative " repeatedly refused to even engage in a discussion" about potential accommodations. Id. at 173:8--12.

In May 2010, the Representative hired Nat Thomas as her new Chief of Staff. Id. at 143:10--14. Shortly thereafter, Ms. Floyd informed Mr. Thomas of her monocular vision and the Representative's unresponsiveness to her requests for authority to delegate certain tasks so that she would be able to take rest breaks and have more time to complete assignments. See id. at 145:8--146:9. Mr. Thomas assured Ms. Floyd that he would discuss the matter with Rep. Jackson Lee. Id. at 146:8--9. Ms. Floyd revisited the matter with Mr. Thomas at least four times, to no avail. Id. at 147:11. Ultimately, during one conversation on August 6, 2010, Mr. Thomas explained that when he had mentioned Ms. Floyd's impairment, the Representative had said that " she didn't give a damn about . . . her disability." Id. at 148:22--24. In response, Ms. Floyd told him that the office had violated her rights, and that she was considering filing a discrimination claim. Id. at 179:10--20. That day, she also decided that she would resign, though she did not immediately notify the office of her decision. See id. at 179:6--20.

Days later, Mr. Thomas left the office, and Yohannes Tsehai replaced him as the new Chief of Staff (the third that year). See id. at 149:10--15, 180:3--13. Ms. Floyd did not directly inform Mr. Tsehai of her impairment or past requests for accommodation, see id. at 149:16--150:5, though it was customary for departing Chiefs of Staff to tell successors about staff members with special needs, see Jackson Lee Dep. at 83:8--84:3. In the month after she had decided to resign, Ms. Floyd continued her employment, planning a children's forum hosted by Rep. Jackson Lee. See Floyd Dep. at 193:23--194:4.

On September 7, 2010, Ms. Floyd sent a resignation email to Mr. Tsehai stating that her last day in the office would be September 17, 2010, the date of the children's forum. See Floyd email of Sept. 7, 2010, Def.'s Ex. 20, ECF No. 53-6; see also Floyd Dep. at 193:23--194:4. Attached to the email was a memorandum and complaint addressed to Rep. Jackson Lee and Mr. Tsehai, alleging that the office had violated the Americans with Disabilities Act by denying her a reasonable accommodation, and in doing so had constructively discharged her. See Floyd memo of Sept. 7, 2010, Def.'s Ex. 20, ECF No. 53-6; Floyd Compl., Def.'s Ex. 21, ECF No. 53-6.

On behalf of the Representative, Mr. Tsehai encouraged Ms. Floyd to return to work with accommodations and, alternatively, tried to negotiate a severance package. See Floyd Dep. at 213:16--215:15; Floyd-Tsehai emails of Sept. 24, 2010, Def.'s Ex. 23, ECF No. 53-6. Rep. Jackson Lee instructed Mr. Tsehai to " bring [Ms. Floyd] back" and to provide " whatever she may need." Jackson Lee Dep. at 101:8--10. Negotiations, however, ultimately proved unfruitful. See Floyd Dep. at 213:16--215:15.

In June 2011, Ms. Floyd, proceeding pro se, filed this suit under the Congressional Accountability Act, 2 U.S.C. § § 1301 et seq.

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The amended complaint asserts claims for failure to accommodate, hostile work environment, retaliation based on both discrete materially adverse actions and a hostile work environment, and constructive discharge. See generally Am. Compl., ECF No. 19. Rep. Jackson Lee moved to dismiss the amended complaint. See ECF No. 22. The Court granted the motion as to Ms. Floyd's claim for retaliation based on discrete materially adverse actions, but denied the motion as to all other claims. See generally Floyd v. Jackson Lee, 968 F.Supp.2d 308 (D.D.C. 2013) (ECF No. 26). Subsequently, Ms. Floyd retained counsel. See ECF No. 39.

Throughout this litigation, Ms. Floyd has proceeded in forma pauperis. The day she filed her original complaint, the Court granted her application for in forma pauperis status, dated June 23, 2011, in which she reported her income and assets under penalty of perjury. See generally App. to Proceed in District Court Without Prepaying Fees or Costs (" IFP App." ), ECF No. 2; Fiat Order Granting Mot. Leave Proceed In Forma Pauperis (June 29, 2011). In that application, Ms. Floyd declared that she was " currently unemployed and ha[d] been since September 17, 2010," the last day she reported to work as a congressional staffer for Rep. Jackson Lee. IFP App. ¶ 2. The application requires employed applicants to state both their " gross pay or wages" and " take-home pay or wages." Id. ¶ 2. In the next section, the application requests all income " received" during the previous twelve months, regardless of the applicant's current employment status. Id. ¶ 3. In response, Ms. Floyd reported $54,500 in congressional salary received from February to September of 2010, $9,381.09 in withdrawals from retirement accounts during 2011,[7] and $2,800 in payment for assisting her sister with errands. See id. ¶ 3. She also reported $1,000 held in a checking or savings account and an automobile on which she was making loan payments. See id. ¶ ¶ 4, 5. Ms. Floyd further averred: " It is uncertain as to what, if any money, I will receive in the future," and " [Because] I have been unemployed nine months, I have depleted most of my savings." Id. ¶ ¶ 3, 4.

During discovery, Rep. Jackson Lee moved to dismiss the complaint with prejudice, on the basis that Ms. Floyd's " allegation of poverty is untrue" and that she had made material misrepresentations in bad faith in her application to proceed in forma pauperis. 28 U.S.C. § 1915(e)(2)(A); see also Def.'s Mot. Dismiss, ECF No. 49. Separately, subsequent to the completion of discovery, Rep. Jackson Lee moved for summary judgment on all of Ms. Floyd's remaining claims. See Def.'s Mot. Summ. J., ECF No. 53. Both the motion to dismiss and the motion for summary judgment are now ripe for adjudication.


A. Dismissal for Untrue Allegation of Poverty

28 U.S.C. § 1915 governs the rights and obligations associated with in forma pauperis status, which exempts persons from prepaying filing fees and costs in federal court litigation. See Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council,

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506 U.S. 194, 196, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). The statute requires applicants for in forma pauperis status to " submi[t] an affidavit that includes a statement of all assets . . . [and that states] that the person is unable to pay . . . fees or give security therefor." 28 U.S.C. § 1915(a)(1). If the court determines " at any time" that " the allegation of poverty is untrue," it " shall dismiss the case . . . ." Id. § 1915(e)(2)(A).

" Because [§ 1915(e)(2)(A)] uses the command 'shall,' dismissal is mandatory in the face of untrue allegations of poverty." Oquendo v. Geren, 594 F.Supp.2d 9, 11 (D.D.C. 2009). But courts adopt a flexible approach in assessing the falsity of these allegations. An in forma pauperis affidavit " is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life." Rowland, 506 U.S. at 203 (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S.Ct. 85, 93 L.Ed. 43 (1948)) (internal alterations and quotation marks omitted). Determinations of eligibility " must be made separately in every case." In re Green, 669 F.2d 779, 786, 215 U.S.App.D.C. 393 (D.C. Cir. 1981) (per curiam); see also Emrit v. Bank of Am., Inc., 566 F.App'x 265, 265 (4th Cir. 2014) (unpublished) (" A district court has discretion to grant or deny IFP status and must base its decision on the poverty and good faith of the applicant and the meritorious character of the cause." (internal quotation marks and citation omitted)). " The in forma pauperis statute neither requires a litigant to demonstrate absolute destitution, nor requires dismissal for inaccuracies, misstatements, or minor misrepresentations made in good faith." Vann v. Comm'r of N.Y. City Dep't of Corr., 496 F.App'x 113, 115 (2d Cir. 2012) (unpublished) (internal quotation marks and citations omitted). Indeed, the purpose of § 1915(e)(2)(A) " is not to punish the litigant whose affidavit contains an insignificant discrepancy, but to weed out the litigant who falsely understates his net worth in order to obtain in forma pauperis status to which he is not entitled based upon his true financial worth." Camp v. Oliver, 798 F.2d 434, 438 n.3 (11th Cir. 1986). On the other hand, a material misrepresentation might " rise to the level of an untrue allegation of poverty requiring dismissal . . . ." Vann, 496 F.App'x at 115. In sum, courts must determine whether an accurate report of the applicant's finances would have " foreclosed in forma pauperis eligibility." Camp, 798 F.2d at 438.

Although 28 U.S.C. § 1915(e)(2)(A) mandates dismissal for a false allegation of poverty, " Congress intended to leave the decision to dismiss with or without prejudice in the district court's discretion." Mathis v. N.Y. Life Ins. Co., 133 F.3d 546, 548 (7th Cir. 1998) (citation omitted). Dismissal with prejudice is an appropriate punitive measure where an in forma pauperis applicant provides false information in bad faith or with intent to deceive the court. See Vann, 496 F.App'x at 116. Relevant to a determination of bad faith are " a plaintiff's familiarity with the in forma pauperis system and history of litigation" and his " failure to credibly explain or correct his declarations when given an opportunity to do so." Id. at 115, 116.

B. Summary Judgment

A court may grant summary judgment when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A " material" fact is one capable of affecting the substantive outcome of the litigation.

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323--24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed.R.Civ.P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must " eschew making credibility determinations or weighing the evidence[,]" Czekalski v. Peters, 475 F.3d 360, 363, 374 U.S.App.D.C. 351 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675, 334 U.S.App.D.C. 92 (D.C. Cir. 1999).


A. Motion to Dismiss and to Revoke In Forma Pauperis Status

In her motion to dismiss, Rep. Jackson Lee contends that this Court must dismiss the case with prejudice because evidence obtained during discovery demonstrates that Ms. Floyd's " allegation of poverty is untrue." 28 U.S.C. § 1915(e)(2)(A); see generally Mem. Supp. Def.'s Mot. Dismiss, ECF No. 49-1.

The parties' disagreement over Ms. Floyd's declared income and assets boils down to two matters. First, Rep. Jackson Lee claims that Ms. Floyd understated the amounts of her retirement account withdrawals by $4,095, and that she accordingly withdrew $13,476, not a mere $9,381. See Mem. Supp. Def.'s Mot. Dismiss 4. This discrepancy, the parties agree, results from Ms. Floyd's use of post-tax net amounts, rather than pre-tax gross amounts. See TIAA Crefletter of July 2, 2014, Pl.'s Ex. 4, ECF No. 51-4. Second, Rep. Jackson Lee alleges that Ms. Floyd omitted $5,226 from her reported congressional staffer income, and that she earned $59,726, not $54,500. See Mem. Supp. Def.'s Mot. Dismiss 3--4. Ms. Floyd concedes that the $54,500 figure excludes her student loan reimbursements but disputes the relevance of the $59,726 figure--her total Social Security and Medicare wages appearing on her 2010 W-2. See W-2 box 3, 5, Pl.'s Ex. 2, ECF No. 51-2. She further contends that, in any event, she actually over -stated her staffer income by $29,501, since the in forma pauperis ...

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