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Lurensky v. Wellinghoff

United States District Court, District of Columbia

February 29, 2016

JON WELLINGHOFF, Chairman Federal Energy Regulatory Commission, Defendant.




In this action, pro se plaintiff Marcia A. Lurensky alleges that Jon Wellinghoff, the Chairman of the Federal Energy Regulatory Commission ("defendant" or "FERC"), violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Rehabilitation Act, 29 U.S.C. § 794(a), by discriminating against her based on her gender, religion, and disability, by retaliating against her for exercising her rights, and by subjecting her to a hostile work environment in retaliation for her protected activity. Defendant has moved for summary judgment. In response, plaintiff has catalogued a series of circumstances with which she took issue over a period of several years. But because many of her claims have not been properly exhausted, and because plaintiff has not come forward with sufficient evidence to enable a reasonable jury to conclude that she suffered adverse effects as a result of discrimination or retaliation, or that she was subjected to severe and pervasive abuse or hostility, the Court will grant FERC's motion.


I. Facts

Plaintiff is a GS-15 attorney who has worked in the Office of the General Counsel at FERC since 1990.[1] Am. Compl. [Dkt. # 34] ¶¶ 4, 11. Plaintiff is female and Jewish. Id. ¶ 9. She alleges that she suffers from one or more ailments that render her disabled.[2] In 2003, the section in which plaintiff had previously worked was dissolved as part of a reorganization, and she was reassigned to the Energy Projects Section in FERC's Office of the General Counsel. Def.'s Statement of Material Facts Not in Dispute ("Def.'s SOF") [Dkt. # 82] ¶ 1; Pl.'s Resp. to Def.'s SOF ("Pl.'s SOF") [Dkt. # 94-3] ¶ 1.

A. Plaintiff's request for a variable work schedule

After the reassignment, plaintiff met with her manager, Robert Christin, and others, to discuss her request to maintain the work schedule that she had enjoyed in her previous assignment. See Decl. of Marcia A. Lurensky [Dkt. # 94-3] ("Pl.'s Decl.") ¶ 4. Plaintiff asked to be able to continue to work from 11:00 a.m. to 7:30 p.m., as needed, to accommodate her need to attend various medical appointments. Def.'s SOF ¶ 2; Pl.'s SOF ¶ 2 (admitting that the meeting was held, but denying that the meeting was arranged "solely" to discuss plaintiff's hours).[3] At the meeting, plaintiff agreed to a compromise: on days when plaintiff had a doctor's appointment and gave timely notice, she could arrive as late as 10:00 a.m. and work until 6:30 p.m.; otherwise, her hours would be 9:00 a.m. to 5:30 p.m. Def.'s SOF ¶ 3; Pl.'s SOF ¶ 3.

B. Allegations of sexual harassment and plaintiff's initial EEO complaints

The amended complaint and the underlying administrative records contain considerable information about plaintiff's strained relationship with her immediate supervisor in the Energy Projects section. On June 17, 2003, the supervisor, Jack Kendall, sent a lengthy, impassioned email to the Deputy General Counsel of FERC, Marsha Gransee, and the head of the section, Robert Christin, expressing consternation about what he described as plaintiff's repeated and "malicious... criticisms of everyone in the agency." Ex. 2 to Decl. of Tiffany Haigler [Dkt. # 82-10] at 11.[4] He reported: "[i]n the last 24 hours, several people have told me that [plaintiff] is saying that I am creating a hostile work environment by making inappropriate sexual comments to her." Id. Kendall denied making comments of a sexual nature to plaintiff and posited that plaintiff was accusing him because she was "annoyed with [him] (more than usual)." Id. [5] According to the version of events set forth in the Declaration plaintiff filed in this case, Kendall, "spoke of sexual matters in the workplace, " she "repetitively asked him not to" discuss those matters with her in 2002 and 2003, and management failed to remedy the situation. See Pl.'s Decl. ¶¶ 21, 24, 25; see also Pl.'s Aff. to Inv. Yates, Ex. 6 to Pl.'s Opp. [Dkt. # 94-3] at 67-70 (stating that Kendall allegedly accessed dating websites at work, showed plaintiff suggestive pictures, and spoke to plaintiff about some of his sexual preferences and experiences).[6]

The day after Kendall's email, Gransee and Christin met with Kendall and plaintiff and implemented a "sexual harassment protection plan, " which provided that plaintiff and Mr. Kendall would be required to have a third party present whenever they interacted in person. Def.'s SOF ¶ 9; Pl.'s SOF ¶ 9.

Three days after that meeting, on June 21, 2003, plaintiff submitted a sworn declaration, on her own initiative. Ex. 4 to Haigler Decl. [Dkt. # 82-10] (plaintiff's declaration). The declaration averred - under penalty of perjury - that plaintiff "d[id] not have any complaint of sexual harassment by and/or about and/or relating to Jack O. Kendall, " that plaintiff "never had any complaint of sexual harassment by and/or about and/or relating to Jack O. Kendall, " and that plaintiff "ha[s] never been sexually harassed by Jack O. Kendall." Id.; see also Def.'s SOF ¶ 10; Pl.'s SOF ¶ 10.[7] On July 1, 2003, plaintiff contacted an EEO counselor and alleged that in light of the "unique situation... arising from her NON-complaint of sexual harassment, " the implementation of the sexual harassment protection plan itself constituted gender discrimination. Ex. 3 to Haigler Decl. [Dkt. # 82-10] (plaintiff's EEO complaint). The EEO counselor interpreted plaintiff's complaint as asserting a hostile work environment based on plaintiff's gender, but plaintiff objected to that characterization and brought a second complaint - this time against the EEO officer - for improperly "reframing [her] initial complaint" as one of hostile work environment when it was really one of gender-based discrimination. Def.'s SOF ¶ 12; Pl.'s SOF ¶ 12, see also Ex. 5 to Haigler Decl. [Dkt. # 82-10]. On August 11, 2003, plaintiff withdrew both complaints - the initial complaint about the sexual harassment protection plan, and the complaint about the reframing of her complaint. Def.'s SOF ¶ 13; Pl.'s SOF ¶ 13; Ex. 7 to Haigler Decl. [Dkt. # 82-10].

C. Plaintiff attempts to be reassigned to another section

Meanwhile, plaintiff was alternately trying to stay on Mr. Kendall's team, and working to be reassigned. On June 21, 2003, plaintiff wrote an email to Deputy General Counsel Gransee and other managers, reiterating her position that she had no complaint against Mr. Kendall, and pleading to be allowed to remain on his team. Def.'s SOF ¶ 14; Pl.'s SOF ¶ 14; Ex. 9 to Haigler Decl. [Dkt. # 82-10].[8] But just four days later, plaintiff's position changed, and she emailed Ms. Gransee to indicate that "[i]t no longer appear[ed] viable that [plaintiff] remain in Energy Projects." Def.'s SOF ¶ 15; Pl.'s SOF ¶ 15; Ex. 10 to Haigler Decl. [Dkt. # 82-10]. Gransee responded on July 7, 2003, and wrote:

Earlier you had sent me an email requesting NOT to be reassigned from Energy Projects, and now this email looks like a request to be reassigned. At this point, it does not seem appropriate to reassign you to another office within OGC.

Def.'s SOF ¶ 15; Pl.'s SOF ¶ 15; Ex. 10 to Haigler Decl.

In September 2003, Gransee reported:

I've looked into your request to be reassigned from Energy Projects. Unfortunately, we cannot offer you a reassignment to another section within OGC at this time. I certainly wouldn't mind if you wanted to check back with me from time to time.

Def.'s SOF ¶ 16; Pl.'s SOF ¶ 16; Ex. 11 to Haigler Decl. [Dkt. # 82-10]. Plaintiff admits that she never proposed "any specific, identifiable job" to which she requested reassignment; she only made a general request to move to another OGC office. Def.'s SOF ¶ 16; Pl.'s SOF ¶ 16.

D. Plaintiff's 2003 performance review

On August 5, 2003, plaintiff received an evaluation of "Fully Successful" for her performance during her first nine months in the Energy Projects section (October 2002 to June 30, 2003). Def.'s SOF ¶ 17; Pl.'s SOF ¶ 17; Ex. 12 to Haigler Decl. [Dkt. # 82-10] (the evaluation). On August 20, 2003, plaintiff contacted an EEO counselor and alleged that Kendall had retaliated against her by issuing the "Fully Successful" rating. Def.'s SOF ¶ 23; Pl.'s SOF ¶ 23; Ex. 19 to Haigler Decl. [Dkt. # 82-10]. She also complained that her request to be transferred had been denied. Def.'s SOF ¶ 23; Pl.'s SOF ¶ 23; Ex. 19 to Haigler Decl.

E. Plaintiff's request for religious leave

On September 4, 2003, plaintiff submitted a request for religious compensatory time for the upcoming Jewish High Holidays. Def. SOF ¶ 20; Exs. 14, 16 to Haigler Decl. [Dkt. # 82-10].[9] Both requests were approved by email the next day, subject to plaintiff's making up the time with overtime. Ex. 15 to Haigler Decl. [Dkt. # 82-10]. Plaintiff's manager warned that any overtime must be approved in advance, before the overtime was worked. Id. But after this instruction was issued, plaintiff worked overtime during the week of October 1, 2003 without seeking prior approval, and then asked that the overtime be applied to her leave for the Yom Kippur holiday. Def.'s SOF ¶ 20; Pl.'s SOF ¶ 20; Ex. 18 to Haigler Decl. [Dkt. # 82-10]. Plaintiff's supervisor denied credit for the overtime and explained that he could not approve overtime retroactively; plaintiff had to let her supervisor know "before, not after, [she] did the work." Ex. 18 to Haigler Decl. at 60. Plaintiff emailed Deputy General Counsel Gransee to question her supervisor's position, and Gransee agreed that "your supervisor must approve of your plan to work outside of regular duty hours BEFORE you can receive comp time." Id.; see also Def.'s SOF ¶¶ 21-22; Pl.'s SOF ¶¶ 21-22. She explained that "[t]his is the rule for all compensatory and overtime work." Ex. 18 to Haigler Decl. at 60; Def.'s SOF ¶¶ 21-22; Pl.'s SOF ¶¶ 21-22.

F. Plaintiff's formal EEO complaint

On October 27, 2007, plaintiff submitted a formal EEO complaint which alleged gender and disability discrimination, and failure to accommodate based on disability, as well as retaliation based on her prior EEO activity (the informal complaints withdrawn in August 2003), and a hostile work environment. Def.'s SOF ¶ 24; Pl.'s SOF ¶ 24; Ex. 8 to Haigler Decl. [Dkt. # 82-10] (formal EEO complaint). Her EEO complaint specifically challenged the "Fully Successful" performance review, and the denial of the request for reassignment. Ex. 8 to Haigler Decl. at 24-25. The complaint alleged that "[m]anagement actions were taken in retaliation for my filing discrimination charges opposing discriminatory conduct and because of my gender and disability (disability and failure to accommodate)." Id. at 21.

Two days later, plaintiff submitted a separate "informal EEO discrimination complaint, " in which she alleged a "hostile work environment in the Energy Projects Section... based on retaliation for filing discrimination charges and opposing discrimination and because of [her] gender, religion, and physical disability - both disability discrimination and failure to accommodate." Ex. 8 to Haigler Decl. at 23; Def.'s SOF ¶ 25; Pl.'s SOF ¶ 25. The informal complaint also requested that the denial of religious compensatory time be incorporated into the pending formal EEO complaint. Ex. 8 to Haigler Decl. at 23; Def.'s SOF ¶ 25; Pl.'s SOF ¶ 25. On February 8, 2005, plaintiff moved to amend her EEO complaint to add a claim of retaliation based on the agency's alleged retrieval and review of documents from her computer, and that motion was granted. Def.'s. SOF ¶ 27; Pl.'s SOF ¶ 27; Ex. 35 to Haigler Decl. at 113.

II. Procedural History

After the agency entered judgment in favor of defendant on plaintiff's formal complaint, plaintiff filed a complaint under seal in federal court on July 14, 2008. Compl. [Dkt. # 3]. On February 3, 2009, defendant moved to unseal the complaint, or for an order directing plaintiff to file a redacted version of the complaint on the public record which did not include references to plaintiff's medical diagnoses. Def.'s Mot. to Partially Unseal Compl. [Dkt. # 16] ("Def.'s Unsealing Mot."). On April 20, 2009, the district judge ordered plaintiff to file an amended complaint that did not include any reference to her medical diagnoses. Order (Apr. 20, 2009) [Dkt. # 25] at 1. In light of the Court's Order, the unsealing motion was denied as moot. Id. at 2.

Plaintiff filed her amended complaint on May 14, 2009. Am. Compl. [Dkt. # 34]. The amended complaint alleges disability discrimination under the Rehabilitation Act, 29 U.S.C. § 791 et seq. (Count I), discrimination based on religion under Title VII (Count II), gender discrimination under Title VII (Count III), retaliation (Count IV) and hostile work environment, both under Title VII (Count V). Id. ¶¶ 32-36. Plaintiff seeks $300, 000 in compensatory damages, "reinstatement of accommodations, " "restoration of leave, " removal of her 2003 performance evaluation, "cessation of discriminatory and retaliatory acts, " and attorney's fees and costs. Id. at 13 ("Relief Requested"). The parties engaged in a contentious period of discovery, which required the assistance of a Magistrate Judge. See Mem. & Op. (Sept. 7, 2010) [Dkt. # 86] at 3 (denying in large part plaintiff's motion to compel the production of documents, and describing her motion as "stupefying in its prolixity and complexity").

On July 29, 2010, defendant filed a motion for summary judgment. Def.'s Mot. for Summ. J. ("Def.'s Mot.") [Dkt. # 82]; Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. (Def.'s Mem.") [Dkt. # 82]. Plaintiff opposed the motion on October 21, 2010, Pl.'s Opp. to Def.'s Mot. ("Pl.'s Opp."), and defendant replied on November 23, 2010. Reply Mem. in Supp. of Def.'s Mot. ("Def.'s Reply") [Dkt. # 99]. On July 18, 2011, the Chief Justice of the United States assigned this matter to a visiting judge for resolution. See Order (July 18, 2011) [Dkt. # 105]. On January 19, 2016, the matter was re-assigned to this Court.


Summary judgment is appropriate "if 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). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324.

The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, the court must "view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).


The complaint asserts five causes of action: disability discrimination, religious discrimination, gender discrimination, retaliation, and hostile work environment. Am. Compl. ¶¶ 32-36. Summary judgment will be entered in favor of defendant on every count because plaintiff failed to exhaust administrative remedies as to some of her counts and she failed to put forth sufficient evidence that would allow a reasonable jury to find in her favor on others.

I. Plaintiff's Rehabilitation Act claim in Count I was not exhausted on a timely basis, and it fails on the merits.

Count I of plaintiff's amended complaint asserts that after she engaged in protected activity, "FERC commenced a pattern and practice of targeted discriminatory retaliation against her." Am. Compl. ¶ 32. Plaintiff also alleges that "FERC has permitted employees who are not disabled and employees with medical needs to work at home, work off-site, adjust their hours of work, and receive credit for work performed off site." Id. Though it is not particularly clear, the Court understands Count I to be asserting a claim that FERC unlawfully failed to accept her proposed 11:00 a.m. arrival time after she was reassigned to the Energy Projects Section in violation of the Rehabilitation Act.[10]

The Rehabilitation Act of 1973 governs employee claims of disability discrimination against the Federal Government. According to the D.C. Circuit. "[i]ts basic tenet is that the Government must take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result."[11] Barth v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993); see 29 U.S.C. § 791(b) (requiring federal employers to take "affirmative action" when making "hiring, placement, and advancement" decisions regarding "individuals with disabilities."). Section 501 of the Rehabilitation Act, which prohibits disability discrimination, provides the exclusive remedy for federal employees alleging that a federal agency engaged in disability discrimination. Taylor v. Small, 350 F.3d 1286, 1291 (D.C. Cir. 2003); 29 U.S.C. § 791(g) (incorporating section 102 of the ADA, 42 U.S.C. § 12112); see also Woodruff v. Peters, 482 F.3d 521, 527-28 (D.C. Cir. 2007).

A. The Rehabilitation Act claim may have been statutorily exhausted, but it was not raised on a timely basis.

1. Statutory Exhaustion

An employee must administratively exhaust claims under the Rehabilitation Act by raising a complaint with the agency before filing a lawsuit. Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006), citing 29 U.S.C. § 794a(a)(1) (limiting judicial review "to any employee... aggrieved by the final disposition of [their administrative] complaint, or by the failure to take final action on [their administrative] complaint."). Statutory exhaustion under the Rehabilitation Act is "jurisdictional, " id., citing Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004), so failure to exhaust is grounds for dismissal of claims.

In order to exhaust administrative remedies under the Rehabilitation Act, a plaintiff must do at least four things. First, plaintiff must file an administrative complaint. See Spinelli, 446 F.3d at 162 (finding that a failure to file an administrative complaint provides a statutory bar to the Court's jurisdiction). Second, in the complaint or the administrative proceedings that follow, plaintiff must provide notice of her claims so that the agency can properly investigate them. See Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). Third, the plaintiff must make a good-faith effort to cooperate with the agency. Koch v. White, 744 F.3d 162, 165 (D.C. Cir. 2014), citing Wilson v. Pena, 79 F.3d 154, 164 (D.C. Cir. 1996). And fourth, exhaustion must be timely - the plaintiff must comply with all applicable deadlines, such as the 45-day counseling period prescribed in 29 C.F.R. § 1614.105(a). Doak v. Johnson, 798 F.3d 1096, 1104 (D.C. Cir. 2015).

It is questionable whether plaintiff statutorily exhausted her failure to accommodate claim, that is, whether she included this issue in her administrative complaint. See Spinelli, 446 F.3d at 162. Her October 2007 formal complaint alleges that the performance evaluation and denial of reassignment were retaliatory in light of her protected activity of "filing discrimination charges opposing discriminatory conduct." Ex. 8 to Haigler Decl. at 21. And her complaint goes on to allege "a hostile work environment... based on retaliation for filing discrimination charges and opposing discrimination based on [her] gender, religion, and physical disability - both disability discrimination and failure to accommodate." Id. at 3. Thus, plaintiff's formal complaint does not seem to assert a discrete claim of failure to accommodate; it only characterizes plaintiff's request for an accommodation as a protected activity that prompted FERC's alleged retaliation.

The 2007 formal administrative complaint also explains that "these claims" - concerning the performance review and the denial of reassignment - "were set forth" in plaintiff's September 9, 2003 EEO complaint. Id. at 2. The September 9, 2003 complaint, in turn, alleges "gender discrimination; disability discrimination and failure to accommodate because of disability; retaliation for filing a gender based informal discrimination complaint." Id. at 4. This raises the question of whether plaintiff's reference to a failure to accommodate in her September 9, 2003 complaint related to the request for a change in duty hours, or some other failure to accommodate.

Plaintiff's exhibits, and the agency's decision, provide some guidance. See Ex. 29 to Pl.'s Opp. [Dkt. # 94-4] at 21-22 (letter from EEO Counselor dated December 31, 2003); Decision of Hr'g [Dkt. # 107-1] ("Agency Decision"). The December 31, 2003 letter from the agency's EEO counselor explains that FERC accepted for "administrative processing and investigation, the allegation of a hostile work environment" which allegedly began at the June 18, 2003 meeting when defendant implemented the sexual harassment protection plan. Ex. 29 to Pl.'s Opp. at 21. The EEO counselor stated that the "investigator will be directed to investigate the circumstances leading up to the June 18, 2003 meeting, the implementation of third party process, and any other circumstances concerning Ms. Lurensky's assertion of a hostile work environment." Id. The letter also summarizes the issues "previously accepted for processing."

[T]he investigation will now examine allegations that the agency discriminated against Ms. Lurensky on the basis of gender (female), religion (Jewish), disability... and retaliation "(based on 2 [sic] prior EEO complaints)" concerning (1) a "fully satisfactory" performance rating... (2) a denial of her request for reassignment to a position outside of the Energy Projects Section... (3) the agency's alleged failure to accommodate Ms. Lurensky's request for compensatory religious leave; and (4) the creation of an alleged hostile work environment commencing with the June 18, 2003 meeting and surrounding circumstances.

Id. The EEO officer's letter implies that the "failure to accommodate" September 9, 2003 complaint was not related to medical appointments, but instead referred to denial of religious compensatory leave for the 2003 Jewish holidays.

But putting aside what was or was not embraced in plaintiff's administrative complaint, the agency recognized in its final decision that although plaintiff's disability discrimination claims were couched in terms of a hostile work environment, "each essentially sought an accommodation for [c]omplainant's alleged disabilities, and therefore, must be considered within the framework of a reasonable accommodation request." Agency Decision at 16. It therefore appears that even though plaintiff's formal complaint asserted only hostile work environment and retaliation claims, the agency investigated and addressed plaintiff's underlying concerns about the alleged failure to accommodate her medical needs.

As the D.C. Circuit has explained, the Rehabilitation Act is limited to employees "aggrieved by the final disposition" of their administrative "complaint." Spinelli, 466 U.S. at 162, quoting 29 U.S.C. § 794a(a)(1). Here, plaintiff has a "final disposition" on the failure to accommodate issue, but no administrative "complaint" on that claim. An argument could be made, then, that plaintiff has failed to statutorily exhaust her administrative remedies. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94 (1990) (explaining that because exhaustion of administrative remedies is a necessary predicate to the government's waiver of sovereign immunity, the statutory exhaustion requirement must be "construed narrowly."). But the purpose of the exhaustion requirement is to "giv[e] the charged party notice of the claim and narrow[] the issues for prompt adjudication and decision.'" Park, 71 F.3d at 907, quoting Laffey v. Nw. Airlines, Inc., 567 F.2d 429, 472 n.325 (D.C. Cir. 1970). Because the agency clearly had notice of the claim - and went on to adjudicate it - the Court will go on to consider the timeliness of the administrative complaint.

2. Timely Exhaustion

The Equal Employment Opportunity Commission "has established detailed procedures for the administrative resolution of discrimination complaints" by federal employees, "including a series of time limits for seeking informal adjustment of complaints, filing formal charges, and appealing agency decisions to the Commission." Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Under the Rehabilitation Act, "an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1); see Steele v. Schafer, 535 F.3d 689, 693 (D.C. ...

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