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Prescott-Harris v. Fanning

United States District Court, District of Columbia

December 12, 2016

NIKITA S. PRESCOTT-HARRIS, Plaintiff,
v.
ERIC K. FANNING, [1] 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

         I. INTRODUCTION

         Defendants' 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 her claims.

         Defendants 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.

         II. FACTUAL BACKGROUND

         A. Ms. Harris's Medical Conditions and Work Environment

         Nikita 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.[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[3] and TMJ[4] 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.

         In 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.

         Around 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.

         Ms. 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.

         B. Ms. Harris's Pursuit of Reasonable Accommodation

         When 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. ¶ 14.[5] 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.

         Now Ms. 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”).

         Plaintiff 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.

         III. ANALYSIS

         A. Exhaustion

         Defendants 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.

         “Government 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 (D.D.C. 2015).

         If a 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 ...


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