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Drasek v. Burwell

United States District Court, D. Columbia.

August 17, 2015

SUSAN VON DRASEK, Plaintiff,
v.
SYLVIA BURWELL, Defendant

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[Copyrighted Material Omitted]

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          For SUSAN VON DRASEK, Plaintiff: George Michael Chuzi, Elaine Lynette Fitch, KALIJARVI, CHUZI & NEWMAN & FITCH, P.C., Washington, DC.

         For SYLVIA M. BURWELL, n her capacity as Secretary of the U.S. Department of Health and Human Services, Defendant: Wyneva Johnson, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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         MEMORANDUM OPINION AND ORDER

         KETANJI BROWN JACKSON, United States District Judge.

         The United States Food and Drug Administration (" FDA" ) fired Plaintiff Susan Von Drasek from her job as an FDA chemist, after repeated warnings about her unsatisfactory performance. Von Drasek has bipolar disorder, and she has brought the instant action against the FDA under the Rehabilitation Act of 1973, 29 U.S.C. § § 791-794f, claiming that her discharge violates that statute. Von Drasek's complaint makes three specific claims: (1) that the FDA failed to accommodate her disability; (2) that the FDA intentionally discriminated against her by terminating her employment because of her disability; and (3) that the FDA discharged her in retaliation for her request for accommodations.

         Before this Court at present are the FDA's motion to dismiss, or in the alternative, motion for summary judgment (Mot. to Dismiss or, in the Alternative, for Summ. J. (" Def.'s Mot." ), ECF No. 7), and Von Drasek's cross-motion for summary judgment (Pl.'s Cross-Mot. for Summ. J. (" Pl.'s Mot." ), ECF No. 10).[1] The FDA argues that Von Drasek did not timely inform the agency of her need for any accommodations, and that, in any event, she has not established a prima facie case to support her failure-to-accommodate claim. ( See Mem. in Supp. of Def.'s Mot. (" Def.'s Mem." ), ECF No. 7, at 14-17.)[2] Moreover, the FDA argues that Von Drasek has failed to raise any genuine issue of fact regarding the intentional discrimination and retaliation claims, because the evidence demonstrates that her termination was the result of non-discriminatory and non-retaliatory factors. ( Id. at 17-18.) For her part, Von Drasek argues that she is entitled to summary judgment on the failure-to-accommodate claim because her request for accommodations was timely and it is undisputed that the FDA failed to reassign her as requested, in violation of its obligations under the Rehabilitation Act. ( See Pl.'s Opp'n to Def.'s Mot. & in Supp. of Pl.'s Mot. (" Pl.'s Mem." ), ECF No. 10-1, at 10-11, 21-22.) Von Drasek also argues that she is entitled to summary judgment on her intentional discrimination and retaliation claims because she has direct evidence of the FDA's discriminatory and retaliatory animus. ( Id. at 35-39.)

         As explained fully below, this Court finds that Von Drasek's request for accommodations

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was quite late, and perhaps irresponsibly so, but was timely nevertheless because the FDA had not yet terminated Von Drasek's employment when it received her request, and thus the agency was still in a position to respond to it. However, because genuine issues of material fact remain regarding whether or not Von Drasek could have performed the essential functions of her job if she was reassigned as requested, entry of summary judgment in either party's favor is unwarranted. With respect to Von Drasek's intentional discrimination and retaliation claims, this Court will enter judgment in favor of the FDA because the Rehabilitation Act requires that the alleged discrimination or retaliation be the sole reason for the adverse employment action, and given the record here, no reasonable jury could conclude that animus regarding Von Drasek's request for accommodation and/or her underlying disability were the but-for cause of her final removal.

         Accordingly, and for the reasons that follow, the FDA's motion to dismiss, or in the alternative, motion for summary judgment is GRANTED IN PART and DENIED IN PART, and Von Drasek's cross-motion for summary judgment is DENIED.

         I. BACKGROUND

         A. Facts

         The underlying facts of this case are largely undisputed. In 1978, Von Drasek was diagnosed with a type of bipolar disorder that produces symptoms such as depression and anxiety, and that " substantially limits major life activities, including sleeping, thinking and concentrating, processing information, impulse control, [and] cognitive abilities[.]" (Compl., ECF No. 1, ¶ ¶ 21-22; see also Pl.'s Ex. 4, Pl.'s Request for Reasonable Accommodation (" Pl.'s Reas. Acc. Req." ), ECF No. 10-6, at 4.)[3] Despite this diagnosis, Von Drasek apparently has enjoyed a lengthy and seemingly generally successful career as a chemist. The complaint extolls Von Drasek's accomplishments in the field, including a graduate degree in geochemistry, six publications, and awards and commendations for her performance. (Compl. ¶ 15; see also Pl.'s Ex. 1, Pl.'s Resume (" Resume" ), ECF No. 10-3, at 5-10.) Furthermore, before joining the FDA, Von Drasek worked for eight years at the United States Department of Agriculture (" USDA" ), where she consistently received " Fully Successful" performance ratings. (Compl. ¶ 18.) According to Von Drasek, she left her post at the USDA only because the particular chemist position that she held was capped at a lower salary and performance level, meaning there was no room for promotion. (Compl. ¶ 19; see also Pl.'s Ex. 3, Aff. of Susan Von Drasek (" Van Drasek Aff." ), ECF No. 10-5, ¶ 2.)

         Von Drasek began working as a chemist for the FDA on April 13, 2008. (Compl. ¶ 20; Def.'s Stmt. of Undisputed Material Facts (" Def.'s Facts" ), ECF No. 7, ¶ 1.) Significantly, Von Drasek did not inform anyone at the FDA of her bipolar condition diagnosis, nor did she request any accommodations at the time she began her tenure at FDA. ( See Def.'s Facts ¶ 4.) By August of 2009, Von Drasek began having difficulty at work, and as a result, she sought private medical attention. (Pl.'s Reas. Acc. Req. at 4.) Once again, Von Drasek did not share with anyone at the FDA that she sought and was receiving

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medical attention for her previously diagnosed bipolar condition. ( See Def.'s Facts ¶ 4.)

         1. The Performance Improvement Plan

         On April 1, 2010, Von Drasek's immediate supervisor, Rachel Dietzel, issued a Performance Improvement Plan (" PIP" ) ( id. ¶ 23), which is a document that advised Von Drasek that her on-the-job performance was unacceptable and that she had 75 days to improve her work. ( See Def.'s Ex. 1, Performance Improvement Plan (" PIP" ), ECF No. 7-1, at 2.) The PIP stated that Von Drasek's performance had failed to meet minimally acceptable levels in two respects. First, according to the PIP, Von Drasek had failed to demonstrate technical knowledge and competency in her field throughout 2009 " because the technical quality of [her] work product [was] significantly lacking despite the amount of time [she] devoted to using instrumentation[,]" and she " lack[ed] the more advanced comprehension of what" she was doing. ( Id. at 2-3.) Second, the PIP stated that Von Drasek failed in " program and project management and performance[,]" given the " repeated deficiencies" in her analyses. ( Id. at 3.) The PIP highlighted that Von Drasek " either [did] not seek guidance, or [was] not capable of recognizing when [she] need[ed] assistance" ( id. ), and that she " repeatedly failed to meet deadlines" ( id. ). The PIP also described what Von Drasek needed to do in order to bring her performance up to the " minimally successful" threshold, gave her 75 days to improve, and specifically warned her that failure to improve could lead to demotion or removal. ( Id. at 6.)

         On September 29, 2010--more than 180 days after she received the PIP document--Von Drasek contacted her treating physician, Dr. Jayashree Coca, M.D., M.P.H., and asked her to fill out a Family Medical Leave Act (" FMLA" ) form. (Compl. ¶ 24.) Dr. Coca completed the form as requested, identifying Von Drasek's bipolar diagnosis. ( Id. ¶ ¶ 24-25; see also Pl.'s Ex. 5, ECF No. 10-7, at 1.) However, Von Drasek did not give the FMLA form to Dietzel or to anyone else at the FDA before Dietzel once again contacted Von Drasek regarding her poor performance.

         2. Proposed Removal And Request for Accommodation

         This next contact took place on October 1, 2010, exactly six months after the PIP issued. Dietzel informed Von Drasek that her performance still had not improved and that Dietzel was proposing her removal. (Compl. ¶ 25; see also Def.'s Ex. 2, Proposal to Remove (" Prop. to Remove" ), ECF No. 7-1, at 8-14.) Four days later, on October 5, 2010, Von Drasek notified Dietzel that she had a disability; that she was in the process of getting her FMLA paperwork together; and that she was requesting accommodations. (Compl. ¶ 26; Def.'s Ex. 3, ECF No. 7-1, at 16.) This was the first time that Von Drasek had disclosed the fact of her disability to anyone at the FDA, and it was her first request for accommodation. Von Drasek followed up on October 8, 2010, by submitting the FMLA paperwork that Dr. Coca had completed. (Compl. ¶ 27.) Then, on October 13, 2010, Von Drasek wrote to both Diezel and the FDA's Labor and Employee Relations Specialist--through counsel--" to address issues involving the proposed removal and to reiterate Plaintiff's request for accommodation." ( Id. ¶ 28; see also Pl.'s Ex. 7, ECF No. 10-9, at 1-2 (letter from counsel requesting an extension of time to respond to the proposed removal because Von Drasek was waiting for additional information from Dr. Coca).)

         Over the next few weeks, Von Drasek's attorney contacted the FDA's reasonable accommodations specialist to ascertain the

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agency's process for requesting accommodations. (Compl. ¶ 29). Thereafter, on November 4, 2010, Von Drasek submitted a formal, written request for accommodation, which included a letter from Dr. Coca detailing the symptoms of Von Drasek's disability and its effect on her job performance. (Compl. ¶ 29; see also Pl.'s Reas. Acc. Req. at 4-5.) Specifically, Dr. Coca explained that

Von Drasek came to see me because she was having difficulties at work. Because of [her] bipolar disorder, she can become easily overwhelmed and confused. When she feels overwhelmed, her anxiety is heightened, and she can face difficulty processing information. This can lead to mistakes being made and an inability to follow through or to request assistance. For example, when Ms. Von Drasek is in a heightened state of anxiety, it can be exceedingly difficult for her to hear and understand instructions, to remember instructions, to comprehend instructions, and to follow instructions. This makes it extremely difficult for [her] to meet tight deadlines. If she is anxious and rushing, she may not take the time to obtain information she needs to successfully complete the assignment. It can also cause her to fear and avoid interacting with others. In short, . . . Von Drasek's bipolar disorder, if not accommodated, can interfere with every aspect of her performance.

(Pl.'s Reas. Acc. Req. at 4-5.) Dr. Coca's letter also recommended three specific accommodations: (1) written instructions for assignments; (2) additional time to complete tasks; and (3) reassignment to a different position. ( Id. at 5; see also Compl. ¶ 30.) A few days after she submitted Dr. Coca's letter, Von Drasek provided the FDA with a signed medical release allowing agency representatives to speak with Dr. Coca and to obtain copies of Von Drasek's medical records. (Compl. ¶ 31; see also Def.'s Ex. 5, ECF No. 7-1, at 32.)

         The following month, on December 23, 2010, Von Drasek submitted a formal written response to her proposed removal. (Compl. ¶ 35; see also Pl.'s Ex. 2, Pl.'s Written Reply to Proposal to Remove (" Pl.'s Reply to Prop. to Remove" ), ECF No. 10-4.) In the response, Von Drasek reiterated that she has a disability and had requested accommodations, and she explained the requirements of the Rehabilitation Act, as she understood them. ( See Compl. ¶ 35; Pl.'s Reply to Prop. to Remove at 2-5.) Von Drasek's response also sought to explain why her current work environment was causing her anxiety, thereby exacerbating her symptoms. (Pl.'s Reply to Prop. to Remove at 2.) According to Von Drasek, another chemist in her workgroup, Susan Nichols, had created an " intimidating and dismaying" environment, particularly when Nichols " yell[ed] and curse[d]" at Von Drasek, " respond[ed] in a very sarcastic fashion" to Von Drasek's questions, and provided " unwarranted criticism" of Von Drasek's work. ( Id. ) Von Drasek stated that both she and others had complained about Nichols' behavior to agency officials, but that no one at the FDA ever took action. ( Id. ) The written response also maintained that Von Drasek's treating physician had concluded that Nichols's " destructive behavior" had " exacerbated" Von Drasek's disability to such an extent that accommodations were required. ( Id. )

         3. The FDA's Treatment Of Von Drasek's Request For Accommodation

         After Von Drasek submitted her request for accommodation, there was a great deal of back-and-forth among agency employees about the issue. Saundra

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Anderson--the FDA's reasonable accommodations specialist--informed Dietzel that, as the decision maker on Von Drasek's accommodation request, Dietzel had an obligation to notify Von Drasek of the agency's eventual decision and a duty to engage in an interactive dialogue with Von Drasek regarding the requested accommodations. (Compl. ¶ 32; see also Pl.'s Ex. 16, FDA Employee Emails, ECF No. 10-18, at 1-2.) In response, Dietzel expressed hesitation, suggesting that the FDA need not accommodate Von Drasek because Dietzel had proposed her removal before the agency was even aware of her disability and before the accommodation request was made. ( See Pl.'s Ex. 11, ECF No. 10-13, at 1 (statement by Dietzel in an email to Anderson that " [t]he employee cannot raise a medical condition after management has proposed the employee's removal" ).) Anderson responded to Dietzel by explaining that an employee can request accommodations at any time, and that the agency must respond. ( See id.; see also Compl. ¶ 32.)

         The FDA also assigned an agency physician, Dr. Lawrence P. Saladino, to Von Drasek's case. Dr. Saladino reviewed Von Drasek's medical documentation, and at one point, even requested that Dr. Coca complete a supplemental form regarding Von Drasek's medical condition. (Compl. ¶ 33.) Dr. Saladino provided Anderson with his final assessment of Von Drasek's circumstances on December 27, 2010. (Def.'s Ex. 6, ECF No. 7-1, at 34-36.) Dr. Saladino agreed that written instructions and extra time were appropriate accommodations given Von Drasek's difficulty thinking, concentrating, interacting with others, working, and sleeping. ( Id. at 35.) However, Dr. Saladino did not recommend reassignment to a different position within the agency, stating that he found Dr. Coca's information to be " vague and nonspecific, and does not clearly explain the medical benefit to be obtained from this request; therefore, it is not possible to recommend granting such a request at this time." ( Id. ) Neither Dr. Saladino nor Dietzel reached out to Von Drasek or Dr. Coca to seek additional information about the reassignment request. (Compl. ¶ 36; see also Pl.'s Mot. at 7-8; Pl.'s Ex. 12, Agency's Reply to Appellant's First Set of Discovery Requests, ECF No. 10-14, at 4-6.)

         According to the complaint, Dr. Saladino's report was forwarded to Dietzel on January 14, 2011, along with a statement from Anderson reiterating that the agency was required to provide Von Drasek with a response to her accommodation request, and noting that the agency had 15 days to do so. (Compl. ¶ 37.) However, Dietzel failed to meet that deadline. ( Id. ) Instead, some 75 days later, Dietzel informed Anderson that she could not accommodate Von Drasek in her office ( id. ¶ 38), and when Anderson suggested that reassignment should be offered to Von Drasek, Dietzel allegedly made a disparaging remark to two other FDA employees about how Anderson didn't " get it[.]" ( Id. ΒΆ 39.) In addition, when Anderson and others in the FDA's human resources department told Dietzel that reassignment paperwork for Von Drasek was being processed, Dietzel wrote emails to other FDA employees making such comments as, " '[w]hat I am hearing is that I need to go full steam ahead and get the [removal] decision issued before [Anderson] does too much more work'" and " 'I guess I can't prevent [Anderson] from reassigning [Von Drasek], unless I ...


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