United States District Court, District of Columbia
BERYL A. HOWELL, District Judge.
The plaintiff, Rhonda Smith, has been a long-time employee of the Department of Justice's ("DOJ") Office of Justice Programs ("OJP") and, since July 2006, worked as a GS-13 staff accountant in OJP's Customer Service Branch. Compl. ¶¶ 7, 21, ECF No. 1. She filed this suit against the defendant, Attorney General, in her official capacity,  alleging that, between 2007 and 2009, she was subjected to a hostile work environment and retaliation because she is African-American and suffered from carpal tunnel syndrome ("CTS") in her right hand, in violation of Title VII, 42 U.S.C. §§ 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. Compl. ¶¶ 240-79. Pending before the Court is the defendant's Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mot."), ECF No. 55, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56. For the reasons set forth below, the defendant's motion is granted.
The plaintiff has alleged myriad forms of mistreatment by OJP over a span of several years, allegedly due to both her race and her CTS. See generally Compl. Although the plaintiff initially alleged that the defendant failed to accommodate her asthma and that the defendant "discriminated against her by improperly adjusting her service computation dates' and delaying her a [sic] within-grade increase in [salary in] 2008, '" the plaintiff subsequently withdrew those claims. Pl.'s Opp'n Def.'s Mot. ("Pl.'s Opp'n"), ECF No. 59 at 2 n.1-2. Set out below is background to assess the five remaining actions by OJP that the plaintiff alleges establish her claims of racial and disability discrimination, hostile work environment, and retaliation. See id. ¶¶ 2-3.
A. The Plaintiff's Leave History And Onset Of CTS Symptoms
Approximately two months after the plaintiff started in her role as a staff accountant in the OJP's Customer Service Branch, in September 2006, she was issued a "Memorandum of Counseling and Possible Leave Restriction" by her first-line supervisor, Darlene Mongelli. See Pl.'s Opp'n Ex. 14 (the "Leave Counseling Memo") at 1, ECF No. 59-19. The Leave Counseling Memo noted that, as of September 15, 2006, the plaintiff had accrued two hours of annual leave, 134.50 hours of leave without pay (LWOP), and a deficit of 114.75 hours of sick leave. Id. The Leave Counseling Memo stated that the plaintiff's prior leave history "shows that there is a long-term pattern of frequent unscheduled absences." Id. The plaintiff was advised that she "must improve [her] attendance, " id., and she was given specific procedures to follow before taking additional leave, id. at 2-4. Specifically, the Leave Counseling Memo stated the plaintiff "must obtain verbal approval of" any unscheduled leave and that she submit requests for scheduled leave "at least 1 workday prior to the scheduled leave." Id. at 2 (emphasis in original). The Leave Counseling Memo further warned that if the plaintiff were "absent without leave having been approved, the absence [would] be recorded as absence without official leave (AWOL)." Id.
The plaintiff was specifically required by the Leave Counseling Memo "to promptly arrive at work at [her] regularly scheduled time... and to work [her] tour of duty each workday." Id. at 3. The Leave Counseling Memo required that the plaintiff notify the plaintiff's supervisor or second line supervisor, Joanne Suttington, if the plaintiff were running late, id., and required that she submit "the original copy of a medical certificate signed by the attending physician" for any medical absence resulting in more than three consecutive missed days of work, id. at 3. The plaintiff avers that the Leave Counseling Memo "did not take into account the fact that Plaintiff's absence [sic] had resulted largely from three operations and asthma attacks." Pl.'s Response to Def.'s Statement of Material Facts not in Genuine Dispute ("Pl.'s SMF") ¶ 4, ECF No. 59-2.
Beginning in March 2007, the plaintiff experienced pain in her right hand and wrist. See Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SMF") ¶ 8, ECF No. 55; Pl.'s SMF ¶ 8. OJP was first alerted to the plaintiff's symptoms when she submitted a note from her doctor stating she was "totally incapacitated" from March 23 through March 30, 2007. Def.'s Mot. Ex. 20 at 4, ECF No. 56. That period of total incapacitation was later extended through April 16, 2007, after the plaintiff submitted another note from her physician. Def.'s Mot. Ex. 21 at 6, ECF No. 56. The plaintiff returned to "light duty status lifting no more than 5 pounds" on April 17, 2007, Def.'s Mot. Ex. 22 at 8, ECF No. 56, but was prohibited from "keyboarding" from May 4 through May 8, 2007, Def.'s Mot. Ex. 23 at 10, ECF No. 56. The record indicates that the plaintiff had no restrictions on her work from May 9, 2007 through June 29, 2007, when the plaintiff submitted a physician's note stating the plaintiff had "Right Carpal Tunnel Syndrome" and she was "to avoid using the keyboard for the next 30 days." Def.'s Mot. Ex. 24 at 12, ECF No. 56. Thus, the plaintiff provided documentation of temporary work restrictions covering March 23, 2007 through May 8, 2007, and June 29, 2007 through July 29, 2007. See supra.
On July 3, 2007, OJP's Reasonable Accommodations Coordinator, Phillip Merkle, "informed Plaintiff of her right to request a reasonable accommodation." Pl.'s SMF ¶ 11. Three days later, the plaintiff left a voicemail for an OJP human resources representative, indicating that she "had spoken with her doctor, and he is recommending that [the plaintiff] wait until all of her test results are in and [her doctor] has reviewed them before she completes the reasonable accommodation documentation." Def.'s Mot. Ex. 25 at 7, ECF No. 55-20. The plaintiff avers that her doctor told her that "he would be unable to make [the] assessment" as to whether her condition was "long-term or permanent" until after the plaintiff had been seen by a specialist. Pl.'s SMF ¶ 12.
Nine days prior to the expiration of her keyboarding restrictions, on July 20, 2007, the plaintiff received a memorandum from her supervisor advising the plaintiff that she was not "expect[ed] to report back to work until your doctor indicates that you can resume your full duties and responsibilities." Def.'s Mot. Ex. 26 at 2, ECF No. 55-21. The memorandum advised the plaintiff that OJP would approve accrued leave or leave without pay ("LWOP"), but not advance leave, due to [the plaintiff's] negative leave balance." Pl.'s SMF ¶ 13. The plaintiff signed the memorandum to acknowledge receipt, but wrote along with her signature that "[t]he information contained in this memorandum is not accurate." Def.'s Mot Ex. 26 at 2. Pursuant to the memorandum directing the plaintiff to advise her supervisor "within five (5) calendar days" of any information "which [the plaintiff] believe[d would] assist [OJP] in the review of this matter, " id., the plaintiff "wrote a memo to her supervisor, Ms. Mongelli, indicating that her 30-day keyboarding restriction was to expire on July 28, 2007, and [the plaintiff] anticipated being able to fully resume all of [her] duties'" as of that date, Pl.'s SMF ¶ 14. Following the expiration of the plaintiff's total keyboarding restriction, the plaintiff "submitted a doctor's note, dated July 30, 2007, indicating that [the plaintiff] will be able... to return to work... with restrictions' and that she (1) use a brace [and] (2) keyboard 4 hours/day with breaks every hour of typing for 5 minutes.'" Pl.'s SMF ¶ 16; see Def.'s Mot. Ex. 27 at 14, ECF No. 56.
The plaintiff underwent carpal tunnel release surgery in January 2008 and returned to work six months later, in July 2008. Compl. ¶¶ 205, 207. While the plaintiff was recuperating from surgery, OJP rearranged the plaintiff's office furniture and installed an ergonomic keyboard. See Pl.'s Opp'n Ex. 7 at 12, ECF No. 59-12. OJP personnel also researched and installed voice activated software on the plaintiff's computer. Def.'s Reply Ex. 5 at 3-6, ECF No. 62-5. Less than a month after the plaintiff returned to work, the plaintiff once again went out on medical leave for four weeks because she was "physically unable to work at all." Pl.'s Opp'n Ex. 34, at 1, ECF No. 59-33.
B. Alleged Discriminatory And Retaliatory Incidents
The five OJP actions, see supra at 2, underlying the plaintiff's claims are related primarily to conduct alleged to have occurred between March and August 2007, during which time the plaintiff was absent from work for approximately thirty percent of the possible work days. The alleged conduct is detailed below.
1. Holding Plaintiff Responsible For Co-Workers' Assignments (April-June 2007)
The plaintiff claims that she was held responsible for her co-workers' assignments, known as "closeouts." Compl. ¶¶ 104-107; 125-128. The plaintiff was originally assigned to review two co-workers closeouts but, when she was out on leave in March and April of 2007, the plaintiff's supervisor reassigned those duties to Wendy Lynch, who is Asian-American. Pl.'s Opp'n Ex. 4 at 19, ECF No. 59-9. The plaintiff states that on June 25, 2007, she received an e-mail from Mongelli stating "that the reassignment of review responsibilities [away from the plaintiff] was only for the duration of [the plaintiff's] absence, " and instructed the plaintiff to resume reviewing one of her co-worker's closeouts. Id. at 20. The plaintiff alleges that neither she nor her co-workers were informed of this arrangement before June 25, 2007, and that one closeout reassigned to the plaintiff for review should have been reviewed by Lynch. See id. at 19-20. The plaintiff avers that this reassignment of work was an example of discrimination and the creation of a hostile work environment based on race because other people in similar circumstances, particularly Lynch, were not treated the same way in similar circumstances. Id.
2. Assigning Work In A Discriminatory Manner (June 2007)
The essence of the plaintiff's work assignment discrimination claim is that the plaintiff's supervisor "had a different expectation" of Lynch "than she did for Plaintiff in similar situations." Pl.'s Mem. Supp. Pl.'s Opp'n Def.'s Mot. ("Pl.'s Opp'n Mem.") at 28, ECF No. 59-1. 1. The plaintiff avers that Mongelli "discriminated against [her] based on [her] race and disability in assigning [her] the First Quarter Excess Cash project and expecting [her] to do it in June when [she] was under a medical keyboarding restriction, " but physically present at work. Pl.'s Opp'n Ex. 1 ¶ 9, ECF No. 59-5. The plaintiff was originally assigned this project on February 23, 2007 by Mongelli, Pl.'s Opp'n Ex. 36 at 51:11-14, ECF No. 60-1, but it was reassigned to a co-worker, Max Mirin ("Mirin") on April 4, 2007, id. at 52:20-53:2. Mongelli asserts that "[b]y the end of May, it became clear that [Mirin] was not experienced and familiar enough with the project to successfully complete it, " Def.'s Mot. Ex. 14 at 3, ECF No. 55-14.
On June 9, 2007, the plaintiff participated in a meeting where she was informed that "the first quarter '07 excess cash report had never been completed, " Pl.'s Opp'n Ex. 36 at 58:1-2, and the plaintiff contends that she learned via e-mail in late June that the project had been returned to her. Id. at 58:3-8. The Excess Cash Project was to be completed by August 9, 2007, but the plaintiff states she was unable to complete the project by the deadline due to her keyboarding restriction. See id. at 62:18-63:9.
The plaintiff alleges that she should not have been reassigned the Excess Cash Project and notes that Lynch "was assigned the second and the third quarter excess cash report project [and] went out on leave during both of those projects... [h]er project was reassigned to someone else, and was never given back to her when she returned from her vacation." Id. at 63:9-16. According to the plaintiff, other employees completed Lynch's assignments, though she offers no evidence other than her own statements and assertions of to whom the reports were reassigned for this contention. See id. at 64:7-67:5. Mongelli, who assigned the projects to both the plaintiff and Lynch, disputes this assertion, stating that Lynch was held responsible for completing her excess cash projects despite the leave she took, and that Lynch "finished [the projects] before she went - before she left. She came in on the weekend before." Def.'s Mot. Ex. 16 at 191:22-192:7, ECF No. 55-16. The plaintiff contends that the reassignment of the first quarter project back to the plaintiff was an instance of Mongelli's attempt "to make [the plaintiff's] working atmosphere adverse and hostile, " Pl.'s Opp'n Ex. 36 at 68:6-7, since Mongelli expected the plaintiff to fail to complete the project on time and Mongelli "could [then] take adverse action against [the plaintiff], " id. at 68:7-12, for the failure.
3. Denying Advance Sick Leave (March to July 2007)
The plaintiff states that she was allowed to take regular leave as she accrued it, Def.'s Mot. Ex. 12 at 98:10-12, ECF No. 55-12, but cites several instances of being denied advance sick leave as support for her contentions that she was discriminated against, subjected to a hostile work environment, and retaliated against on the basis of her alleged disability. DOJ has a formal written policy outlining the requirements for requesting and granting advance sick leave, Def.'s Mot. Ex. 35, ECF No. 55-27, and that policy is explained first, before discussing the specific instances challenged by the plaintiff.
a) DOJ's Advance Sick Leave Policy
Under DOJ's leave policy, an employee generally "must submit a request for advance sick leave as far in advance of the requested period of absence as possible, " though allowances can be made "[i]n the event of injury or sudden illness" when "advance sick leave may be granted after the fact provided the employee submits any documentation required in support of the request within the time frame established by the approving official." Def.'s Mot. Ex. 35 ¶ 34(b)(1). Specifically, an employee "must submit the following: (a) A Standard Form 71, Application for Leave. (b) A medical certificate or other administratively acceptable evidence substantiating the reason(s) for the absence. (c) Such additional documentation as the Department component or approving official may prescribe." Id. ¶ 34(b)(2).
The policy states that "[e]mployees do not have a vested right to advance leave, regardless of the circumstances, and the approval of requests for advance sick leave is at the discretion of the approving official." Id. ¶ 34(c)(1). Approving officials are to consider enumerated factors before granting such leave, including: "(a) Whether the employee can be expected to return to duty. (b) The need for the employee's services. (c) The benefits in retaining this employee. (d) The fact that, if the employee separates because of disability or illness (whether by retirement or resignation), the Department has no authority to require repayment of the amount paid to the employee for advance leave." Id. The ultimate decision is "entirely up to the discretion of the supervisor." Pl.'s Opp'n Ex. 10 at 53:11-12, ECF No. 59-15. "Approving officials may not grant advance sick leave" if the employee "has indicated an intention to resign for disability[;]" "a separation date has been established which would preclude the employee from earning enough leave to repay the advance sick leave[;]" or "there is other evidence that the employee will not return to duty." Def.'s Mot. Ex. 35 ¶ 34(c)(2).
In the plaintiff's division, the plaintiff's second line supervisor, Suttington, set additional requirements for granting advance sick leave, noting that (1) "[a]ny request for advance leave must be authorized by the [Chief Financial Officer][;]" (2) the leave "must be requested in advance[;]" (3) the "request for advance leave should be written and include the time period for the leave[;]" (4) "[a]dequate documentation should be attached to support the request, e.g., physician's note justifying the need for leave[;]" (5) the "employee's advance sick leave balance cannot exceed -240 hours;" and (6) "[a]dvance annual leave is limited to the amount that the employee earned and [could] payback [sic] by the end of the year, i.e., the projected year end balance cannot be less than zero." Def.'s Mot. Ex. 36 at 2, ECF No. 55-28.
b) The March 2007 Denial
On March 23, 2007, the plaintiff submitted a request for advance sick leave, along with a doctor's note stating she was totally incapacitated. See Def.'s Mot. Ex. 20 at 4. In an email exchange between Mongelli and OJP's Human Resources ("HR") division, Mongelli advised that she received "a leave slip for Advanced [sic] Sick Leave dated 3/23" from the plaintiff, along "with some documentation. The documentation is NOT an original document." Pl.'s Opp'n Ex. 16 at 4, ECF No. 59-20 (capitalization in original). Mongelli told the HR personnel in the email that "[t]here are work assignments that could be completed without keyboarding, " and that Mongelli did not plan to approve any "leave at all based on this request." Id. Mongelli was instructed by HR to record the plaintiff's leave as leave-with-out-pay LWOP, and recommended that Mongelli "provide [the plaintiff] with a leave restriction letter based on her continued pattern of leave abuse." Pl.'s Opp'n Ex. 19 at 4, ECF No. 59-22.
c) The April 2007 Denial
On April 2, 2007, Mongelli informed a DOJ HR specialist, Veronica (Tina) Hudson via email that the plaintiff "plan[ned] to come in [that day] just long enough to drop off paperwork for the Leave Bank program" and that the plaintiff would "be out 2 more weeks." Pl.'s Opp'n Ex. 19 at 3, ECF No. 59-22. Mongelli requested a meeting with the plaintiff to discuss the request. Id. At the meeting, which the plaintiff attended with a representative from her union, Mongelli "advised [the plaintiff] that [she] needed to come to work because [Mongelli] was not willing to advance [the plaintiff] leave." Pl.'s Opp'n Ex. 36 at 99:12-15, ECF No. 60-2.
The plaintiff alleges that during this meeting, Mongelli told the plaintiff "there was plenty of work that could be done without" requiring the plaintiff to use a keyboard. Id. at 100:1-3. Mongelli avers that the plaintiff's "union rep recommended that as a compromise, [the plaintiff] come in for 1/2 days beginning today [April 3, 2007]. [Mongelli] agreed." Pl.'s Opp'n Ex. 19 at 2. The plaintiff alleges that Mongelli "stated she would provide [the plaintiff] with a list of written duties that [she] could do that didn't require the use of [her] hand, " but she was never provided with the requested list. Pl.'s Opp'n Ex. 36 at 101:2-8.
The next day, the plaintiff stated that she visited "personnel and once they reviewed [her] doctor's notes ordering [the plaintiff] to remain home [and] stating [she] was totally incapacitated" that the personnel office advised the plaintiff's supervisors that it was a "risk and a liability" for the plaintiff to remain at work. Id. at 100:10-21. The plaintiff avers that her second-line supervisor, Suttington, informed her at the end of the working day on April 3, 2007 "that [the plaintiff] should not be at work, and [the plaintiff] should go home and remain home until [she] was cleared by [her] doctor." Id. at 105:15-20. Subsequently, Mongelli denied the plaintiff's request for eighty hours of advance sick leave for the period from April 2 through April 13, 2007, citing the plaintiff's negative sick leave balance and available annual leave balance of.25 hours. Pl.'s Opp'n Ex. 20 at 2, ECF No. 59-23. The plaintiff's absence was charged to leave without pay. Id.
d) The July 2007 Denial
From June 29, 2007 to July 29, 2007, the plaintiff was under doctor's orders to avoid keyboarding. See supra Part I.A. The plaintiff worked under this restriction, reviewing Mirin's work, until July 20, 2007, when the plaintiff was given a memorandum from Mongelli, Def.'s Mot. Ex. 26, instructing the plaintiff "to go home until [she] could perform [her] duties 100 percent, " Pl.'s Opp'n Ex. 36 at 27:20-28:15. The memorandum stated that the plaintiff's "inability to use the keyboard render[ed her] unable to perform 85% of the duties and responsibilities of [her] position, " and further stated that the reviewing tasks the plaintiff had been performing "are but a small part of [the plaintiff's] regular work assignments." Def.'s Mot. Ex. 26 at 2. Moreover, the memo stated that the plaintiff's "primary work assignments [were] to process closeouts" and that she had "closed 176 of the 531 closeouts assigned" to her since April 2007, which was substantially less that the "3 to 5 [closeouts] per day" a GS-13 staff accountant such as the plaintiff was expected to complete. Id.
The memorandum stated that the plaintiff's "inability to produce at the average GS-13 level and [her] dependence on other staff members [was] affecting the ability of the Branch to meet its goals." Id. at 3. Consequently, OJP was "not willing to approve any requests for advance sick or advance annual leave due to [the plaintiff's] current leave status." Id. at 3. This did not mean that the plaintiff was not allowed to take any leave; the memorandum indicated that OJP would "approve any request... to use any accrued sick or annual leave or to use leave without pay (LWOP) to cover [the plaintiff's] absences through the end of the remaining 30 day period, " and that the plaintiff could apply for two voluntary leave bank donor programs or leave under the FMLA. Id. (emphasis added). The plaintiff was afforded the opportunity to provide "within five (5) calendar days from" July 20, 2007, the date of the memorandum, "any additional information, including documentation from [her] doctor, which [she] believe[d would] assist [DOJ] in the review of" her status, if the plaintiff did not agree with the memorandum's assessment. Id.
Three days after receiving the memorandum alerting her that no requests for advance sick leave would be approved, the plaintiff nonetheless submitted, on July 23, 2007, a request for advance sick leave, Def.'s Mot. Ex. 30 at 2, ECF No. 55-23, which was denied, Pl.'s Opp'n Ex. 36 at 32:12-14.
e) The Plaintiff's Belief That Advance Sick Leave Denials Were Discriminatory
The plaintiff alleges that the denial of her advance sick leave requests was discriminatory because "there were others that were being advanced leave or there were [sic] speculation that others were being advanced leave, " who were not African-Americans. See Pl.'s Opp'n Ex. 3 at 92:19-93:1, ECF No. 59-8. The plaintiff does not identify who these "others" were, stating that she "didn't go to the non-African Americans to say are you getting advanced leave, you know, was yours advanced, but because people's business never stayed personal in our office, somewhere along the line, somebody, whether it was the time keeper or somebody in the front office, would say well so and so just got their leave approved, but this one's leave was denied." Id. at 93:2-10. The plaintiff stated that she obtained the information supporting this allegation "secondhand" and not "from the source, " id. 93:18-24, and was unable to name any co-workers who had their advance leave requests denied, id. at 95:5-17.
4. Charging Plaintiff With Tardiness (2007 generally)
The plaintiff claims that she was racially discriminated against because she was forced to take leave if she arrived to work late, while other employees were given a fifteen minute "grace period" after their scheduled start times. See Pl.'s Opp'n Ex. 3 at 99:1-18. Specifically, the plaintiff claims that if she failed to arrive at work by 8:00 a.m., Mongelli would require her to submit a leave slip for the time period between 8:00 a.m. and 8:15 a.m. See id. at 101:6-23. The plaintiff named three non-African-American employees in the customer service branch who were not required to submit leave slips in similar circumstances. See id. ...