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Carter v. Castro

United States District Court, District of Columbia

March 19, 2017

BEN CARSON, in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, [1]Defendant.

          MEMORANDUM OPINION [Dkt. #15]

          RICHARD J. LEON, United States District Judge

         Adrienne Carter ("plaintiff or "Carter") brings this action against Ben Carson, in his official capacity as Secretary of the U.S. Department of Housing and Urban Development ("defendant" or "HUD"), alleging five counts of workplace discrimination and seeking declaratory relief and damages. Before the Court is defendant's Motion to Dismiss Plaintiffs Complaint or, in the Alternative, for Summary Judgment [Dkt. #15]. Upon consideration of the pleadings, relevant law, and the entire record herein, the Motion to Dismiss is GRANTED.


         Adrienne Carter is an African-American female formerly employed by HUD as a Staff Assistant in the Office of Native American Programs. Am. Compl. for Decl. Relief and Damages ¶¶ 3, 9 ("Am. Compl.") [Dkt. #11]. During the course of her employment at HUD, Carter suffered from "a number of medical and physical ailments, including asthma, high blood pressure, which caused blurred vision, a serious stomach disorder, kidney stones and migraine headaches." Am. Compl. ¶¶ 19, 47. As a result of these ailments, it was frequently necessary for Carter to miss work. From "F Y2010 to June 2012" Carter "missed 1800 work hours, " including 1104 work hours for "medically related" reasons. Am. Compl. ¶¶ 44-45.[2] Some of these absences were unpredictable. "On one occasion, Ms. Carter was rushed from HUD's medical facility to a hospital via ambulance because she was suffering from a serious asthma attack." Am. Compl. ¶ 20.

         In early 2010, Carter's supervisor, Terrance Michael Andrews, became concerned about her work performance. Am. Compl. ¶ 10. He discontinued her authorization to telework, placed her on leave restriction, and added an element to her annual performance appraisal which required her to maintain a correspondence log to track correspondence originating in the field offices and at headquarters. Am. Compl. ¶¶ 12, 22-23. In June 2011, Carter received a "minimally satisfactory" rating on a critical element of her performance appraisal, and in August, Andrews placed Carter on a Performance Improvement Plan ("PIP"). Am. Compl. ¶¶ 14-17. In September, Andrews issued Carter a formal letter of reprimand for showing up to work an hour after her reporting time, for taking three hours of leave without prior approval, and for failing to comply with the requirements of her leave restriction. Am. Compl. ¶ 28. In October, Andrews reviewed Carter's performance, and although he did not assign her a performance rating, extended the PIP for 90 days. Am. Compl. ¶ 16. By the end of the year, Andrews had started "working with the personnel office to remove Ms. Carter." Am. Compl. ¶¶ 30, 34. Around the same time, Carter requested an accommodation that would permit her to telework. Am. Compl. ¶ 31. A few months later, she requested an accommodation that would allow her to report to HUD "later than the core beginning work hours of 7:30 a.m. to 9:30 a.m." Am. Compl. ¶ 36. Both requests were denied. Am. Compl. ¶¶ 31, 37-38. On July 2, 2012, HUD issued a Notice of Proposed Removal for Failure to Maintain a Regular Work Schedule and Failure to Follow Instructions. Am. Compl. ¶¶ 6, 40. On September 12, 2012, Carter was removed from her position. Am. Compl. ¶ 42.

         Carter filed two administrative complaints while still employed at HUD. First, she filed a grievance pursuant to the collective bargaining agreement between her union and HUD. The grievance initially challenged "the PIP [Andrews] had issued, " and at subsequent arbitration proceedings, her removal from HUD. Am. Compl. ¶¶ 6, 29. Next, Carter filed an Equal Employment Opportunity ("EEO") complaint. Am. Compl. ¶ 5. The EEO complaint alleged violations of the Rehabilitation Act of 1973; the creation of a hostile work environment through, among other things, issuance of the PIP; and, following subsequent amendment, alleged a claim of reprisal addressing the notice of removal issued by HUD. Am. Compl. ¶¶ 5~6- Tne grievance and the EEO complaint were filed on September 19, 2011, and November 18, 2011, respectively.[3]

         Carter initially filed this action in February 2016. Her amended complaint, filed in June, alleges five counts of workplace discrimination. Count One alleges that HUD's denial of Carter's request for a reasonable accommodation violated the Rehabilitation Act of 1973. Am. Compl. ¶¶ 46-53. Count Two alleges that HUD's denial of Carter's request for a reasonable accommodation, and her ultimate removal, created a continuing violation the Rehabilitation Act of 1973. Am. Compl. ¶¶ 54-63. Count Three alleges "retaliation, " Am. Compl. ¶¶ 64-73, presumably in violation of Title VII of the Civil Rights Act of 1964. Count Four, which has since been abandoned by plaintiff, see Opp'n to Mot. to Dismiss Am. Compl. & in Alt. for Summ. J. 1 n.l, 28-29 (" Pl.'s Opp'n") [Dkt. #16], alleged racial discrimination in violation of Title VII, Am. Compl. ¶¶ 74-78. Count Five alleges that HUD subjected Carter to a hostile work environment, also in violation of Title VII. Am. Compl. ¶¶ 79-83. HUD moves to dismiss.


         HUD moves to dismiss Carter's amended complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The Court assumes the plaintiffs factual assertions to be true and draws all inferences in the plaintiffs favor. See Sissel v. U.S. Dep't of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014). It "need not, however, accept inferences drawn by a plaintiff if such inferences are unsupported by the facts set out in the complaint." Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (per curiam) (alterations and quotation marks omitted). Nor must it "accept legal conclusions couched as factual allegations." Id. (citing Iqbal, 556 U.S. at 678). "In ruling on a motion to dismiss, the Court may consider not only the facts alleged in the complaint, but also documents attached to or incorporated by reference in the complaint and documents attached to a motion to dismiss for which no party contests authenticity." Demissie v. Starbucks Corporate Office & Headquarters, 19 F.Supp.3d 321, 324 (D.D.C. 2014).

         HUD also moves to dismiss for failure to exhaust administrative remedies. "Motions to dismiss for failure to exhaust administrative remedies are properly addressed as motions to dismiss for failure to state a claim." Scott v. Dist. Hosp. Partners, L.P., 60 F.Supp.3d 156, 161 (D.D.C. 2014); see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (affirming dismissal). In such cases, "[i]t is the defendant's burden to prove by a preponderance of the evidence that the plaintiff failed to exhaust administrative remedies." Johnson v. Gonzales, 419 F.Supp.2d 55, 58 (D.D.C. 2007) (citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)).


          1. Rehabilitation Act Claims

         The first two counts of the amended complaint assert that HUD failed to accommodate plaintiffs disability. "The Rehabilitation Act of 1973 governs employee claims of handicap discrimination against the Federal Government." Ward v. McDonald, 762 F.3d 24, 28 (D.C. Cir. 2014) (quotation marks omitted). "Its basic tenet is that the Government must take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result." Id. (quotation marks omitted). The Act provides that "[n]o otherwise qualified individual with a disability" shall be discriminated against by a federal agency "solely by reason of her or his disability." 29 U.S.C. § 794(a). Thus, to prevail on a failure to accommodate claim, a plaintiff must show, at a minimum, that "she was a qualified individual with a disability." Ward, 762 F.3d at 31 (citing Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307-08 (D.C. Cir. 2010)).

         Upon review of the amended complaint, I find that in regard to this threshold requirement, Carter has "essentially 'plead[ed] h[er]self out of court by alleging facts that render success on the merits impossible.'" Nurriddin, 818 F.3d at 757 (quoting Trudeau v. FTC,456 F.3d 178, 193 (D.C. Cir. 2006)) (first alteration in original). An employee is not "qualified" under the Rehabilitation Act if her workplace attendance is so infrequent that she is unable to perform her job. Carr v. Reno,23 F.3d 525, 530 (D.C. Cir. 1994) ("[A]n essential function of any government job is an ability to appear for work[.]"). In her amended complaint, Carter herself states that she "missed 1800 work hours" from "FY2010 to June 2012, " attributing 1104 of these missed work hours to "medically related" causes. Am. Compl. ¶¶ 44-45. Courts in our Circuit have found similarly frequent and repeated absences-even for medical reasons-sufficient to render the complainant "unqualified as a matter of law under the Rehabilitation Act." Meadows v. Mukasey,555 F.Supp.2d 205, 207 (D.D.C. 2008) (granting summary judgment for federal defendant where plaintiff "missed 295 work days from January 2000 through October 2002"); see also Doak v. Johnson, 19 F.Supp.3d 259, 276-77 (D.D.C. 2014) (finding requested accommodation for medical issues "unreasonable as a matter of law" where plaintiffs "attendance record was all over the place"), aff'd,798 F.3d 1096 (D.C. Cir. 2015); id. at 276 (explaining the Act '"does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability'" (quoting EEOC v. Yellow Freight Sys., Inc.,253 F.3d 943, 949 (7th Cir. 2001) (en banc)). Indeed, our Court of Appeals itself found a plaintiff not "qualified" under the Act where her medical condition caused her to be absent 200 to 500 hours per year for several years. Carr, 23 F.3d at 527-30. Here, Carter's self-reported absences exceed that amount, and the amended complaint does not plead that she would be capable of performing the essential functions of her position "with or without" an accommodation. Ward, 762 F.3d at 28; cf. Doak, 19 F.Supp.3d at 279 ...

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