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Lurensky v. Wellinghoff

United States District Court, District of Columbia

March 1, 2016

JON WELLINGHOFF, Chairman, Federal Energy Regulatory Commission Defendant.



In this action, pro se plaintiff Marcia A. Lurensky has sued defendant Jon Wellinghoff, in his capacity as Chairman of the Federal Energy Regulatory Commission (“FERC”), for a second time, alleging that the agency discriminated against her based on her religion, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); based on her disability, in violation of the Rehabilitation Act, 29 U.S.C. § 794(a), and based on her age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633(a) (“ADEA”).[1]Plaintiff alleges that defendant took a number of distinct retaliatory and discriminatory steps, each of which was due to one of her protected characteristics or her past EEO activity. The complaint is primarily based on FERC’s handling of the requests for leave that plaintiff submitted after she fractured her foot in the summer of 2005, and on a series of actions that took place after FERC reassigned her from the Energy Projects Section of the Office of the General Counsel to the Office of Administrative Litigation at FERC in November of that year.

Defendant has moved to dismiss, and plaintiff has since moved for leave to amend her complaint. Because plaintiff’s proposed amendments would be futile, and because plaintiff has failed to state a claim upon which relief can be granted, the Court denies leave to amend, grants defendant’s motion to dismiss, and dismisses this action.


Plaintiff is an approximately 67-year-old[2] woman, employed as a GS-15 attorney at the Federal Energy Regulatory Commission in Washington, D.C. Compl. [Dkt. # 1] ¶ 3. Plaintiff states that she is disabled, and she alleges that she has provided FERC with medical documentation of her disabilities. Compl. ¶ 6. She alleges that from 1990 until 2003 when she first became an EEO complainant, her performance reviews were “Highly Effective, ” or higher. Compl. ¶ 7.

The complaint itemizes a number of events and actions, beginning in 2005, for which plaintiff is seeking redress. On July 20, 2005, plaintiff fell as she approached FERC’s Headquarters Building and fractured her right foot. Compl. ¶ 9. Plaintiff alleges that before that happened, she had already voiced her dissatisfaction with the agency’s leave policies, including the instruction “that advanced annual leave could not be used for medical purposes.” Compl. ¶ 9. But in this action, she complains that “[b]y memorandum dated July 27, 2005, Plaintiff was told that she would not be granted advanced leave for other than medical reasons.” Compl. ¶ 9; Proposed Am. Compl. [Dkt. # 10-2] ¶ 10. See also Decl. of Marcia A. Lurensky, Ex. 1 to Pl.’s Opp. to Def.’s Mot. to Dismiss [Dkt. # 7-2] (“Pl.’s Decl.”) ¶¶ 11-13; 18-22.[3] And according to the complaint, FERC also denied plaintiff’s request to work from home as she recovered. Compl. ¶ 12; Pl.’s Decl. ¶ 19.

In August 2005, plaintiff received a “Fully Satisfactory” performance appraisal rating, which plaintiff asserts “does not reflect the quality, or credit her for the substance, of the work she performed.” Compl. ¶ 10.

On the day after Thanksgiving in 2005, plaintiff was reassigned from her “sedentary” job at FERC’s Office of the General Counsel to FERC’s Office of Administrative Litigation (OAL). Compl. ¶ 10. OAL attorneys are assigned to perform duties in hearing rooms in FERC’s Headquarters Building, which have fluorescent lighting. Id. Plaintiff adds in her Declaration that FERC reassigned her to OAL “although having information that aspects of duties in OAL exacerbate [her] disabilities, including exposure to fluorescent lighting in FERC’s hearing rooms.” Pl.’s Decl. ¶ 24.

Plaintiff then turns to a period three years later and alleges that FERC delayed in responding when she requested advanced sick leave in September and October 2008. Compl. ¶ 11. FERC required plaintiff to submit additional medical documentation in support of her request, and denied it in December 2008.

Also in December 2008, FERC denied plaintiff’s request that the agency remove a Christmas garland off of a handrail in the lobby of the Headquarters Building at FERC as an accommodation for her disabilities. Compl. ¶ 12.

On February 25, 2009, plaintiff filed a formal complaint alleging disability discrimination, hostile work environment, and retaliation arising out of the Agency’s delayed response to her inquiries about advanced sick leave, and its decision not to remove the garland from the lobby. Ex. D. to Def.’s Mot. to Dismiss [Dkt. # 6-4].

In May 2010, FERC relocated OAL to the building located at 1110 First Street, N.E., which plaintiff alleges did not have the same disability access, amenities, and security as her prior duty station. Compl. ¶ 13. According to plaintiff, the equipment at the new duty station was on higher, non-accessible countertops, and office supplies were kept in high cabinets above counters, which plaintiff could not access, even with a stepstool. Id. The new duty station had a fitness center, but it did not have a Health Unit or provide adequate transportation to the health unit at plaintiff’s former duty station. Compl. ¶ 14.[4] The complaint does not specify whether this move alleviated the fluorescent light problem posed by the previous location.

On July 2, 2010, plaintiff filed a formal complaint alleging age and disability discrimination arising from “some 80 issues, ” including the issues surrounding the relocation. Ex. E. to Def.’s Mot. to Dismiss [Dkt. # 6-5].

Also in 2010, plaintiff complained that the Information Technology department failed to facilitate her ability to access information about her leave and about the facilities and security at the new building. Compl. ¶ 15. Plaintiff filed a formal EEO complaint on October 12, 2010, based on those and other allegations. Ex. F to Def.’s Mot. to Dismiss [Dkt. # 6-6].

Plaintiff alleges that she learned in 2011 that her sensitive personal information could be found on an unrestricted FERC shared network drive, available to all FERC employees. Compl. ¶ 16. On April 25, 2011, plaintiff filed another formal complaint alleging age and disability discrimination, hostile work environment, and retaliation based on the disclosure of this information and the agency’s failure to respond to her concerns. Ex. G. to Def.’s Mot. to Dismiss [Dkt. # 6-7].

In early 2011, FERC denied plaintiff’s request to telework for two specific days as an accommodation for her disabilities. Compl. ¶ 18. Plaintiff also requested that her coworkers undergo disability sensitivity training, but FERC never provided the training. Compl. ¶ 19. In February 2011, plaintiff filed another complaint alleging age and disability discrimination, hostile work environment, and retaliation arising out of those denials. Ex. H to Def.’s Mot. to Dismiss [Dkt. # 6-8].

Plaintiff filed the instant pro se complaint on June 4, 2012. Her complaint does not allege a specific cause of action, but rather, it sets forth the facts described above and concludes:

As a direct and proximate result of defendant’s intentional discrimination, retaliation, and hostile work environment as set forth above, plaintiff has suffered and will continue to suffer embarrassment, humiliation, emotional distress, and other special and general damages.

Compl. ¶ 20.[5] Plaintiff requests that the Court permanently enjoin defendant from engaging in illegal acts, and asks for damages under Title VII, the Rehabilitation Act, and ADEA, including:

[C]ompensatory damages, granting of accommodations, restoration of leave, removal of performance evaluation from plaintiff’s record, mandatory disability sensitivity training to be provided to FERC employees, attorneys’ fees and costs expended during the administrative processes, attorneys’ fees, if any, and costs incurred in this case, cessation of discriminatory and retaliatory acts by the Agency against the [p]laintiff, and such other relief as the Court may deem just and proper.

Compl. Request for Relief. At the time she filed her complaint, plaintiff filed a notice of related case referring to the pending 2008 employment discrimination action which was then assigned to a visiting judge, and this case was assigned to the same judge.

On August 6, 2012, defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Def.’s Mot. to Dismiss [Dkt. # 6] (“Def.’s MTD”); Mem. of P. & A. in Supp. of Def.’s MTD [Dkt. # 6-1] (“Def.’s MTD Mem.”). Plaintiff opposed the motion on September 14, 2012, Pl.’s Opp. to Def.’s Mot. [Dkt. # 7] (“Pl.’s MTD Opp.”); Pl.’s Mem. of P. & A. in Supp. of Pl.’s Opp. [Dkt. # 7-1] (“Pl.’s MTD Mem.”), and defendant replied. Reply Mem. in Further Supp of Def.’s Mot. [Dkt. # 9] (“Def.’s MTD Reply”).

About two weeks after the motion to dismiss was fully briefed, plaintiff moved for leave to amend her complaint. Pl.’s Opposed Mot. for Leave to File Her First Am. Compl. & Mem. in Supp. of Her Mot. [Dkt. # 10] (“Pl.’s Mot. for Leave”). Plaintiff’s proposed amended complaint seeks to make three clarifications to her original complaint. Pl.’s Mot. for Leave at 2. First, plaintiff seeks to add language to allege that prior to the 2005 incident in which she fractured her foot, defendant had retaliated against her by revoking an existing accommodation that enabled her to work varying hours. Id.; see also Proposed Am. Compl. ¶¶ 9-10. She alleges that she fell on the morning of July 20, 2005 as she “tried to arrive at her duty station consistent with FERC’s change in her duty hours.” Proposed Am. Compl. ¶ 10; see also Pl.’s Decl. ¶ 18 (“On July 20, 2005 I fell on the First Street sidewalk on approaching the FERC building because of the ongoing discrimination, harassment, retaliation, hostile work environment, failure to be granted advanced leave, and resultant pressure and stress to arrive at work on time (at my new, earlier, arrival time - consistent with FERC’s 2005 change of my duty hours).”). Second, plaintiff seeks to add clarification to her allegation that defendant reassigned plaintiff to OAL notwithstanding its knowledge of plaintiff’s disabilities, and specifically, her “acknowledged need to avoid fluorescent light.” Pl.’s Mot. for Leave at 2-3; see also Proposed Am. Compl. ¶ 11. Finally, plaintiff seeks to make clear that her complaint also incorporates a claim of discrimination related to her religion. Pl.’s Mot. for Leave at 3; see also Proposed Am. Compl. ¶ 21.

Defendant opposed plaintiff’s motion for leave to amend her complaint on November 2, 2012, arguing that any amendment would be futile. Def.’s Opp. to Pl.’s Mot for Leave [Dkt. # 11]. Plaintiff replied in support of her motion on November 13, 2012. Pl.’s Reply to Def.’s Mot. for Leave Opp. [Dkt. # 12]. The case was reassigned to this Court on January 5, 2016.


I. Motion for Leave to Amend

When a party seeks to amend its pleading after a responsive pleading has been served, the Court should “freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2); see Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). When evaluating whether to grant leave to amend, however, the Court must consider these factors: (1) undue delay; (2) prejudice to the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff has previously amended the complaint. Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996), quoting Foman v. Davis, 371 U.S. 178, 182 (1962). The Court may deny leave to amend based on futility if the proposed claims ...

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