United States District Court, District of Columbia
NIKITA S. PRESCOTT-HARRIS, Plaintiff,
ERIC K. FANNING,  et al., Defendants. Re Document No. 22
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS
RUDOLPH CONTRERAS United States District Judge
Motion to Dismiss pushes Plaintiff's Rehabilitation Act
Complaint through a gauntlet of 12(b) hurdles, leaving a much
leaner cause of action on the other side. Defendants first
ask the Court to dismiss Plaintiff's claims based on
events occurring after she filed her administrative
complaint, because without exhaustion of individual claims of
discrimination the Court lacks subject-matter jurisdiction.
They then argue that Plaintiff's claims are preempted by
the Federal Employees' Compensation Act, at least insofar
as they seek recovery for workplace injuries. Defendants
further contend that the Rehabilitation Act's venue
provisions preclude the Court from evaluating claims of
discrimination for actions that took place in Virginia.
Finally, they argue that Plaintiff has not shown that she
suffered “adverse employment actions” for any of
are correct that the Court lacks jurisdiction over
unexhausted claims, and that the Rehabilitation Act requires
a different venue for claims that have no apparent connection
to the District of Columbia. They are also correct that
Plaintiff cannot double-recover for her workplace injuries,
but their specific contention is more appropriately addressed
at a later stage of the proceeding involving damages. And,
although they get ahead of themselves when they argue that
Plaintiff needed to show adverse employment actions for her
failure-to-accommodate claims, they are correct that she has
not adequately stated discrimination or retaliation claims.
Accordingly, the Court grants the Motion in part and denies
it in part.
Ms. Harris's Medical Conditions and Work
Prescott-Harris brought this action under the Rehabilitation
Act, alleging that Defendants Eric Fanning and Ashton Carter
unlawfully discriminated against her, retaliated against her,
and failed to reasonably accommodate her disabilities. Compl.
¶ 2. Ms. Harris, a registered nurse, began
working for the Army in January 2009 as a Nurse Case Manager.
Id. ¶ 28. Her immediate supervisor was Dr.
David Van Echo. Id. ¶ 29. In December of that
year, Ms. Harris's personal rheumatologist formally
notified the Army that Ms. Harris had the disabling
conditions of fibromyalgia and TMJ and requested an ergonomics
evaluation of her workplace as an accommodation under the
Rehabilitation Act. See Id. ¶ 36. About two
weeks later on December 31, 2009, Ms. Harris's doctor
notified the Equal Employment Opportunity (“EEO”)
Manager at Walter Reed National Military Center
(“WRAMC”) of Ms. Harris's conditions and
requested reasonable accommodation, which in addition to an
ergonomics evaluation included a request for Ms. Harris to
work from 10:00 a.m. to 6:00 p.m. Id. ¶ 38.
Then, “the Army, . . . through [Dr.] Van Echo . . .,
intentionally failed to promptly respond to Ms.
Harris'[s] request[s].” Id. ¶ 39.
Three months later, a separate Army unit formally published
an Ergonomic Hazard Report, finding that Ms. Harris's
work environment was ergonomically deficient and placed her
at “substantial risk” of exacerbated injury.
Id. ¶ 40. Two days later, instead of pursuing a
plan to comply with the Hazard Report, Dr. Van Echo issued
Ms. Harris a “Written Counseling” on the basis of
attendance violations, which Ms. Harris contends was
meritless and retaliatory. See Id. ¶ 41. A
month later in April 2010, still not in compliance with the
Hazard Report, Dr. Van Echo issued Ms. Harris a “Notice
of Leave Restriction, ” which Plaintiff contends was
also meritless and retaliatory. See Id. ¶¶
43-44. In July, the Occupational Health Clinic at WRAMC
requested for Dr. Van Echo to provide Ms. Harris with certain
accommodations recommended in the Hazard Report, but Dr. Van
Echo and other Army officials ignored the request.
Id. ¶ 45.
early December 2010-about a year after Plaintiff's
initial EEO accommodation request to the Army-Ms.
Harris's doctor again requested reasonable accommodation
“under the Americans with Disabilities Act” in
the form of her previous requests, telecommuting, and
allowing for physical therapy. Id. ¶ 47. Dr.
Van Echo knew about these requests, but instead of working
with Ms. Harris, he charged her with AWOL two days later for
allegedly failing to report for duty, then the next day
issued another “Counseling Statement” for
allegedly failing to provide evidence for her claim that she
could not receive a flu shot. Id. ¶¶
48-50. Ms. Harris had provided medical documentation earlier
in the month. See Id. ¶ 46. Later, nine days
after Ms. Harris submitted yet another request for reasonable
accommodation at the end of December 2010, Dr. Van Echo and
the Army served an unreasonable Leave Restriction memorandum
against Ms. Harris. See Id. ¶ 51. A week later,
Ms. Harris submitted another formal request for reasonable
accommodation, adding several specific requests. See
Id. ¶ 53. The same day, she contacted EEO alleging
discrimination based on her disability, the Army's
failure to reasonably accommodate her, and retaliation.
Id. ¶ 55. Then, on January 20, 2011-a week
after Ms. Harris's final request-Dr. Van Echo e-mailed
Ms. Harris stating that “[t]here [was] no money in the
budget to purchase furniture of any kind, ” which
Plaintiff alleges was false and directly at odds with the
Army's governing procedures. See Id.
¶¶ 58-59. The EEO Counselor assigned to Ms.
Harris's case interviewed Dr. Van Echo that day, when he
stated that he was frustrated by Ms. Harris's requests
for reasonable accommodation and claimed that he did not know
Ms. Harris needed ergonomic equipment. See Id.
¶ 61. In late March 2011, Ms. Harris reported for work
at WRAMC for the last time. See Id. ¶ 5.
April 2011, Ms. Harris's medical conditions worsened.
See Id. ¶ 66. She filed a worker's
compensation claim under the Federal Employees'
Compensation Act (“FECA”) on April 1, then on
April 6 her doctor “ordered [her] immediately out of
work and placed on total disability because of the Army's
repeated and wrongful refusals to reasonably accommodate,
” based on a finding of total disability by two
attending physicians. See Id. ¶¶ 66, 70,
72. On April 11, another Army supervisor, Dr. Lindenberg-with
full knowledge of the total disability finding-ordered Ms.
Harris back to work. Id. ¶ 72. At the end of
April, the Army and Dr. Van Echo rejected Ms. Harris's
accommodation requests. Id. ¶ 73. Then, in
early June, Dr. Lindenberg and the Army received a medical
note from Ms. Harris's doctor stating that Ms. Harris was
unable to work and was under physicians' care. See
Id. ¶ 74. The next day, Dr. Lindenberg
retroactively charged Ms. Harris with AWOL, despite her
earlier requests to be placed on leave-without-pay status.
See Id. ¶ 75. On June 21, Ms. Harris submitted
another doctor's note continuing Ms. Harris on total
disability. See Id. ¶ 77. A week later, Dr.
Lindenberg issued another AWOL charge, this time threatening
Ms. Harris with termination if she did not immediately report
for work. See Id. ¶ 78. Another doctor, Brian
Carty, then issued another total-disability note to Dr.
Lindenberg on July 12. Id. ¶ 80. Three weeks
later, Dr. Lindenberg issued a notice of proposed suspension,
which Plaintiff contends was without merit. See Id.
¶ 81. In August 2011-while she was away from work-Ms.
Harris's unit, including Dr. Lindenberg, was transferred
to Ft. Belvoir Community Hospital in Virginia. See
Id. ¶ 82.
Harris's FECA claim was granted in November 2011, on the
basis that her conditions were exacerbated by her employment.
Id. ¶ 88. Two weeks later-while Ms. Harris was
still away from work-Dr. Lindenberg “caused the Army
and/or DOD to issue Ms. Harris a meritless Five . . . Day
Suspension.” Id. ¶ 89. According to Dr.
Lindenberg, that suspension has not been expunged from Ms.
Harris's personnel file. See Id. ¶ 90. In
June 2013, the Department of Defense-at the direction of Dr.
Lindenberg, among others-issued Ms. Harris a Notice of
Proposed Removal for failure to maintain a regular work
schedule. Id. ¶ 95.
Ms. Harris's Pursuit of Reasonable Accommodation
Ms. Harris contacted the EEO office in January 2011, she
“complain[ed] of ongoing discrimination, non-sexual
harassment[, ] and disparate treatment based on her race
(African American), sex (female), disability (physical)[, ]
and reprisal based upon participation in EEO activity.”
See Compl. ¶ 13. On February 22, 2011, she
timely filed a formal complaint. Id. ¶
Then in March, the Army accepted the complaint for EEO
investigation, and later accepted an amendment to the
complaint adding claims that Dr. Van Echo and the chief nurse
gave her a below-average performance appraisal. See
Id. ¶ 16. In August, “the Army acknowledged
[Ms. Harris's] amendment of her [complaint] to include
disability discrimination, ongoing failure to reasonably
accommodate[, ] and retaliation . . . [and the] EEO Director
. . . represented that the amendment would be investigated .
. . and forwarded to the DOD for this purpose.” See
Id. ¶ 83. However, the Army's EEO Director
never added the Department of Defense as a party. See
Id. ¶ 84. When she received a Report of
Investigation in March 2012, Plaintiff claims she timely
requested a hearing before an EEOC Administrative Judge.
See Id. ¶ 17. In August 2013, the
Administrative Judge directed Plaintiff to amend her
complaint, adding similar claims based on disability and
retaliation, including Defendants' Notice of Proposed
Removal-which was issued on Department of Defense
letterhead-and adding the Department of Defense as a
defendant. See Id. ¶ 19. In August 2015,
Plaintiff filed a Notice of Intent to File Suit in U.S.
District Court. See Id. ¶ 25. The
Administrative Judge still has not taken final action.
See id. ¶ 27.
Harris asks the Court for relief from the Army on the bases
of disability discrimination, failure to reasonably
accommodate, and retaliation. Her disability discrimination
claim stems from Defendants' alleged disparate treatment
of Plaintiff in the forms of failing to provide a safe
working environment, failing to reasonably accommodate,
wrongfully placing Plaintiff on “Leave Restriction,
” wrongfully imposing a five-day suspension, and other
adverse actions. See Id. ¶¶ 107-08. She
bases her failure to reasonably accommodate claims on
multiple acts, alleging wrongful actions starting in March of
2010 and continuing through November 2011. See Id.
¶ 114. The same is true for her retaliation claims.
See Id. ¶ 121. The claims that she brings that
occurred after she filed her formal complaint consist of
Defendants: demanding she return to work on April 11, 2011;
denying requests for reasonable accommodation on April 27,
2011; wrongfully charging Plaintiff with AWOL on June 3,
2011; wrongfully noticing and threatening Plaintiff with a
notice of proposed suspension; and, wrongfully imposing a
five day suspension. See Id. ¶¶ 114, 121.
Plaintiff asks for a declaratory judgment, back-pay,
front-pay, compensation for loss of enjoyment of life, pain
and suffering, permanent physical and mental injury,
embarrassment and humiliation, costs of future medical
expenses, and attorney's fees. See Id. at 28
(“Prayer for Relief Against Army”).
also seeks similar relief from the Department of Defense
based on Dr. Lindenberg's actions. See Id. at 31
(“Prayer for Relief Against Department of
Defense”). In particular, she claims retaliation for
the November 14, 2011 five-day suspension, issuing a notice
to return to work on August 6, 2012, threatening to fire her
via a Notice of Proposed Removal on June 7, 2013, and
“other retaliatory actions and omissions.”
See Id. ¶ 128.
argue that Ms. Harris failed to exhaust her EEO
administrative remedies for all claims against the Department
of Defense and any against the Army occurring after she filed
her EEO complaint in February 2011. See Defs.'
Mem. in Supp. Mot. to Dismiss at 12, ECF No. 22. Defendants
specifically argue that Plaintiff never filed an EEO
complaint addressing the alleged discrimination occurring
after February 2011, and never filed any complaint against
the Department of Defense. See Id. Plaintiff
responds that she alleged “ongoing”
discrimination, then amended her complaint in August 2011 to
include a negative performance evaluation and in August 2013
to include the Notice of Proposed Removal and the Department
of Defense as a defendant. See Pl.'s Mem. in
Opp'n to Defs.' Mot. Dismiss at 13-15, ECF No. 24.
She further argues that the Army EEO Director acknowledged
the amended complaint and promised to forward it to the
Department of Defense. See Id. at 14.
employees alleging discrimination in violation of Title VII .
. . must exhaust administrative remedies before bringing
their claims to federal court.” Hamilton v.
Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 2012). The
exhaustion requirements for Title VII claims and
Rehabilitation Act claims are the same. See 29
U.S.C. § 794(a) (applying the procedures of Title VII to
Rehabilitation Act claims). Because exhaustion is a
jurisdictional requirement under the Rehabilitation Act when
a party fails to file an administrative complaint at all,
see Doak v. Johnson, 798 F.3d 1096, 1103-04 (D.C.
Cir. 2015), cert. denied, 2016 WL 5640225 (U.S. Oct.
3, 2016), in such cases, “it is the plaintiff's
burden to plead and prove that the Court has jurisdiction,
” Welsh v. Hagler, 83 F.Supp.3d 212, 217
person believes she has been discriminated against, the
Rehabilitation Act requires that she contact an EEO Counselor
prior to filing a complaint, so that they can try to resolve
the matter informally. See 29 C.F.R. §
1614.105(a). If the parties are unable to resolve the issue
informally, the aggrieved person may file a formal complaint
within 15 days of receiving notice of her right to do so from
the EEO counselor. See 29 C.F.R. § 1614.105(d).
“A complainant may amend a complaint at any time prior
to the conclusion of the investigation to include issues or
claims like or related to those raised in the
complaint.” 29 C.F.R. § 1614.106(d). Within 90
days of receiving a final decision or after the formal
complaint has been pending for 180 days, the complainant may
file a civil action in federal court. 42 U.S.C. §
2000e-16(c). Despite differing approaches among the circuits,
see, e.g., Jones v. Calvert Grp., Ltd., 551
F.3d 297, 303 (4th Cir. 2009), courts in this district have
held that “the Supreme Court's seminal decision in
National Railroad Passenger Corporation v. Morgan,
536 U.S. 101 (2002), makes clear [that] a Title VII plaintiff
is required to exhaust his or her administrative remedies
with respect to each discrete allegedly discriminatory or
retaliatory act, ” see Wada v. Tomlinson, 517
F.Supp.2d 148, 183 (D.D.C. 2007), aff'd, 296 F.
App'x 77 (D.C. Cir. 2008). This means that, under cases
in this district, the Supreme Court has “rejected the
‘continuing violation' theory that would permit
plaintiffs to recover for ...