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Reagan-Diaz v. Sessions

United States District Court, District of Columbia

March 30, 2017

JEFF SESSIONS, United States Attorney General, [1]Defendant.


          Beryl A. Howell, Chief Judge

         The plaintiff, Sharon-Lee Reagan-Diaz, an employee of the Federal Bureau of Investigation (“FBI”), brings this suit against the Attorney General, in his official capacity, alleging that the FBI denied her a reasonable accommodation, and discriminated and retaliated against her, based on her disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. First Am. Compl. (“FAC”), ¶ 4, ECF No. 12. After the plaintiff sustained a debilitating workplace injury in September 2011, the FBI denied her request for what she alleges was a reasonable accommodation of working for no more than two hours per day. She then received worker's compensation during her recuperation, until her return to work, on a part-time basis, in May 2013. She currently remains gainfully employed on a full-time basis by the FBI. The plaintiff contends that, in reprisal for her equal employment opportunity (“EEO”) activity, she was improperly denied two awards in 2012 and 2013, during which periods she was either recuperating or working part-time. Pending before the Court is the defendant's Motion to Dismiss and for Summary Judgment, (“Def.'s Mot.”), ECF No. 25, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 56.[2] For the reasons set forth below, the defendant's motion is granted.


         A. The Plaintiff's 2011 Injury and Requests to Return to Work

         In 2011, the plaintiff was employed as a GS-14 Management and Program Analyst in the Performance Management Unit (“PMU”) of the Resource Planning Office (“RPO”) of the FBI. FAC ¶¶ 17, 80. The plaintiff was assigned full-time to the FBI's “Sentinel” program, a team project to develop the web-based “Sentinel” application, which is “the FBI's current electronic case management system.” Id. ¶¶ 18-19. The job was demanding, in a “fast paced environment, ” that required the plaintiff frequently to work nine or ten hour days to finish her work, and to attend numerous, often “impromptu, ” meetings. Def.'s Mot., Ex. 4, Deposition of Sharon-Lee Reagan-Diaz (“Pl.'s Dep.”) at 25:2-4, 29:22-30, 31:9-13, 36:14-18, 45:9-10, 46:23-47:2, 48:7-20, 59:11-17, ECF No. 25-8. Additionally, much of the Sentinel team's work was conducted on a classified network, and thus could not be performed outside FBI facilities. Def.'s Mot. Decl. of Gordon D. Bitko, Chief Information Officer, FBI ¶ 9, ECF No. 25-3.

         On September 7, 2011, while at work, the plaintiff suffered a serious injury, the details of which are not disclosed in the record, and was placed on medical leave. FAC ¶ 2. After her injury, the plaintiff was diagnosed with Reflex Sympathetic Dystrophy, or Complex Regional Pain Syndrome, a condition causing chronic, disabling pain in her extremities that affected the functioning of her circulatory and musculoskeletal systems and initially prevented her from engaging in routine activities such as walking or lifting objects. Id. ¶ 27. From the date of her injury to May 9, 2013, the plaintiff received workers' compensation payments pursuant to the Federal Employees' Compensation Act (“FECA”), 5 U.S.C. §§ 8101 et seq. Def.'s Mot., Ex. 1 at FBI 1206, ECF No. 25-5.

         Several months after the injury, in January 2012, the plaintiff contacted RPO about returning to work and requested permission to telecommute. FAC ¶ 30. In the months that followed, the plaintiff and various FBI personnel engaged in a series of communications regarding the processes and requirements for her return to work. Initially, some supervisors suggested to the plaintiff that they merely had to grant her a “reasonable accommodation.” For example, when the plaintiff first requested to return to work in January 2012, her direct supervisor, Gordon Bitko, told her that she needed to be in the office for more than just two hours, proposing a “reasonable accommodation” that the plaintiff work four hours in the office per day, with the rest completed at home. Id.

         The situation was soon clarified, however, that the plaintiff could not receive a “reasonable accommodation” while still receiving worker's compensation payments. On January 11, 2012, Elizabeth Stoddard, a Supervisor in RPO, Def.'s Mot., Ex. 6, Deposition of Elizabeth Stoddard, at 10:16-18, ECF No. 25-10, explained to Bitko that “[e]mployees on Worker's Compensation do not go through the Reasonable Accommodation Process. Instead they go through a process that is facilitated by [the Worker's Compensation Unit (“WCU”)] called Alternative Work Assignments (“AWA”), ” Def.'s Mot., Ex. 14 at FBI 1671, ECF No. 25-18; see also Pl.'s Corrected Opp'n Def.'s Mot. (“Pl.'s Opp'n”) at 4, ECF No. 34 (“The FBI decided that Plaintiff would not go through the ‘Reasonable Accommodation Process, ' but instead would proceed under the Alterative Work Assignment (‘AWA') process of workers' compensation directed by Michael Huff.” (citations omitted)). Under the AWA process, Michael Huff, the Unit Chief of the FBI's WCU, would have to draft an AWA “job offer” for the plaintiff and submit it to the Department of Labor (“DOL”) for approval.[3] Pl.'s Opp'n at 4 (citing Pl.'s Opp'n, Ex. 6, Deposition of Michael Huff, Unit Chief, Workplace Injury Liaison Unit, FBI (“Huff Dep.”), at 159-61, ECF No. 31-6). As explained by Stoddard, the AWA process is similar to the “reasonable accommodation” process, but the plaintiff would be compensated by DOL instead of the FBI. Def.'s Mot., Ex. 14 at FBI 1671. As part of this process, the plaintiff had to communicate to WCU about the job activities she could and could not perform given her medical condition. Id.

         On March 22, 2012, Stoddard advised the plaintiff via email that she could start working once the RPO had completed the AWA process in coordination with WCU, stating that “[t]here are several projects that we are eager to get you engaged in as soon as you're able and we've complete [sic] the appropriate processes.” Def.'s Mot., Ex. 15 at FBI 2206-07, ECF No. 25-19; see also Pl.'s Opp'n, Ex. 26 at FBI 2257, ECF No. 31-26. Stoddard listed a number of job duties that they were hoping the plaintiff could “support.” Pl.'s Opp'n, Ex. 26 at FBI 2257. Stoddard asked the plaintiff in the March 22 email to confirm the work activities she could perform given her current medical condition, telling her that “[t]o be clear, my understanding is that [Huff], [Bitko], and I all need positive confirmation from you that you feel comfortable in performing these roles; otherwise we would want to re-evaluate them such that you are comfortable.” Def.'s Mot., Ex. 15 at FBI 2207. One week later, on March 29, 2012, the plaintiff responded, but stated only that she was having email problems, asked to have messages sent to another email address, and explained that she would “proceed to review the work duties” and would let Stoddard know if she had any questions. Id. at FBI 2206.

         Several weeks later, on April 19, 2012, RPO Assistant Director David Schlendorf informed the plaintiff that they were still “waiting to hear back from [the plaintiff] about . . . the work duties.” Id. at FBI 2206. The plaintiff responded that she had, in fact, replied to Stoddard's March 22 email “regarding the work duties, ” stating that “[a]t the time [Stoddard] sent me the e-mail with the work duties I din't [sic] have any questions” and that “I am sure once we have an oficial [sic] starting work date we will need to regroup and see if these work duties need to be updated.” Id. at FBI 2205-06. Stoddard and Huff then expressed confusion to one another, as neither of them had seen a response from the plaintiff specifically regarding the job duties. Id. at 2205. Stoddard wrote to Huff, stating that “[t]he only response I saw to the work duties” was the plaintiff's March 29 email and that to Stoddard's knowledge, the plaintiff had “not positively confirmed that the work duties were okay and appropriate for her medical circumstances, as requested.” Id.

         Five days later, Huff wrote to Schlendorf, telling him that “[t]here is nothing more [Schlendorf] or anyone else in RPO needs to do” and that they were still “waiting on [the plaintiff] to provide a response to [Stoddard's] email and provide [Huff's] office with updated medical [information] from her doctor and a completed safety check list.” Def.'s Mot., Ex. 16 at FBI 1741, ECF No. 25-20. Huff explained that “[o]nce these three issues are resolved, then [they could] proceed with making a light duty job offer to [the plaintiff].” Id. Yet, no evidence is in the record that the plaintiff ever substantively responded to the March 22 email from Stoddard confirming the work duties she was comfortable performing.

         On May 18, 2012, however, the plaintiff again wrote in an email to Huff that she had “been cleared to work 2 hours a day 5 days a week close to home on a trial basis.” Def.'s Mot., Ex. 18 at FBI 1838, ECF No. 25-22. Huff responded by referring to an apparent oral conversation the plaintiff had with Huff two weeks earlier on May 3, 2012. Id. According to Huff's email, in this conversation, Huff and the plaintiff discussed that they would have to wait until the plaintiff's doctor cleared her to work for four hours per day and that the plaintiff had stopped having, in her terms, “bad days.”[4] Id. at FBI 1838; FAC ¶¶ 43-44. The plaintiff responded to Huff's email by reiterating her desire to return to work “on a gradual basis.” Def.'s Mot., Ex. 18 at FBI 1837. Huff replied that he had discussed the matter with RPO leadership, including Schlendorf, resulting in the “unanimous” decision that the plaintiff “need[ed] to concentrate on recovery efforts regarding [her] medical condition, ” noting, in particular, that the plaintiff was still having “bad days” when she could not “function well.” Id. at FBI 1836. Huff explained that the plaintiff's “bad days” issue is “not taken into account within [DOL's AWA] process, ” and had the “potential to create a great deal of stress on [the plaintiff] as it could lead to a denial of benefits if [she] [could not] continue to work the formalized return to work program under the [DOL] rules and regulations.” Id. Huff advised that everyone “agreed that [the plaintiff] need[ed] to continue [her] recovery program and the most important issue [was her] long term health and well being” and that “[c]oming back to work at this point could jeopardize all the hard work and positive gains [she] ha[d] made thus far.” Id. Huff concluded that once the plaintiff's doctor had cleared her to work for at least four hours per day and her “issue with bad days and good days ha[d] been resolved as much as possible, ” WCU would “be happy to develop an alternative work assignment to meet [her] medical restrictions.” Id. Huff then explained to Bitko that WCU could not make a “suitable offer for . . . work as [the plaintiff] [could] only work 2 hours per day, and she, by her own admittance, [did] not know when she [would] have good and bad days.” Id. at 1835.

         On July 16, 2012, Huff wrote to Schlendorf, Stoddard, and Bitko, telling them that he had spoken to the plaintiff about Stoddard's March 22 email on April 27 and May 3. Def.'s Mot., Ex. 19 at FBI 2250-51, ECF No. 25-23. According to Huff, the plaintiff stated that she could not “comment [sic] to performing any of the duties in the March 22, 2012, email as she does not feel comfortable trying to make deadlines with her work, ” since she has “good days and bad days, [when] she is not able to get out of bed and work on the bad days, ” and, consequently, she did not make “a commitment to work specific job duties as outlined in the March 22, 2012 e-mail.” Id. at FBI 2250. Huff further explained that he could not make an AWA job offer based on “good days and bad days, ” and that in order for him to write an offer, he had to have a “list of duties that [the plaintiff would] be performing.” Id. Since Huff could not make a job offer under FECA, Huff referred the plaintiff to Lynn Hoffman at FBI's [Office of Equal Employment Opportunity Affair's (“OEEOA”)] Office of Reasonable Accommodation.” Id. at 2250-51.

         Rodney Yelder, a Program Manager at OEEOA, however, refused to adjudicate the plaintiff's request for a reasonable accommodation while she was still on workers' compensation. Def.'s Mot., Ex. 20, at FBI 1583, ECF No. 25-24. On August 13, 2012, Yelder informed the plaintiff that “[b]ased on the fact that [she was] currently on worker's comp. with no work return date, a reasonable accommodation determination c[ould not] be made on [her] case at th[at] time.” Id. On August 17, Yelder also told Huff that he would explain to the plaintiff that an individual would have to meet the requirements of “[Huff's] program” before OEEOA could “provide a reasonable accommodation” and that “[i]t is not reasonable to provide an accommodation to an employee on workers comp to come back to work when the worker's comp unit's requirements have not been met.” Def.'s Mot., Ex. 21, at FBI 2269, ECF No. 25-25.

         On September 28, 2012, the plaintiff contacted Huff again, claiming that DOL's Claims Examiner in her case, Shanell Davis, would “approve” her request to “return to work 2 hours per day, 5 days per week.” Def.'s Mot., Ex. 22, at FBI 2314-15, ECF No. 25-26. On October 5, 2012, however, Huff clarified in an email to David Wade, the Chief Medical Officer at the FBI, that he spoke to a Supervisory Claims Examiner at DOL, Stephanie Stone, who told him that Davis had, in fact, not approved the plaintiff's request and instead had told the plaintiff “that DOL does not approve 2 hour job offers as suitable.” Id. at 2313. Wade wrote to the plaintiff, explaining that he had discovered that DOL had required the plaintiff to undergo a Second Opinion Examination in May 2012. Pl.'s Opp'n, Ex. 18 at FBI 2330, ECF No. 31-18. According to Wade, the Second Opinion Examiner concluded that the plaintiff could work six hours per day. Id. at FBI 2330. Accordingly, because of the conflict between the plaintiff's attending physician and the second opinion examiner, a “third evaluation [was] needed to resolve the conflicting opinions.” Id. The record is unclear whether a third medical evaluation was ever scheduled and completed.

         Six months later, on May 21, 2013, after the plaintiff's workers' compensation payments had ceased, the FBI's Reasonable Accommodations Committee (“RAC”) convened and recommended a part-time schedule of 20 hours per week as a reasonable accommodation for the plaintiff. Def.'s Mot., Ex. 2 at FBI 1462, ECF No. 25-6. The plaintiff first reported back to work on at FBI Headquarters on May 20, 2013, accepting the RAC's part-time schedule as offered on May 24. Def.'s Ans. Pl.'s Am. Compl. (“Def.'s Ans.”) ¶ 71, ECF No. 16; Def.'s Mot., Ex. 3 at FBI 1522.

         Over the next several weeks, the plaintiff repeatedly requested permission to work from an office closer to home, FAC ¶¶ 74-75, and on July 16, after a June 27 incident during a fire drill where the plaintiff fainted and was taken to the FBI's Health Services Unit, the FBI determined that she was unable to meet work attendance requirements at FBI Headquarters, Id. ¶ 76; Def.'s Ans. ¶ 78. On August 21, 2013, the plaintiff began working in the Chantilly, Virginia, office of the FBI Cyber Division, and by January 2014 her work was full-time. Def.'s Ans. ¶ 80.

         B. The 2012 Director's Award and 2013 Attorney General's Award

         While the plaintiff was still on leave, some of her coworkers on the Sentinel project team were selected as recipients of the 2012 Director's Award for Outstanding Information Management. FAC ¶ 55. Although the plaintiff alleges that she was on the initial list of employees considered for the award, she did not receive it. Id. ¶¶ 55-57. Robert Blake, a Special Assistant who managed the Sentinel project, Id. ¶ 34, selected the initial slate of nominees from the Sentinel project for the award, see Def.'s Mot., Ex. 26, Sworn Statement of Robert Blake, Special Assistant, Information Technology Management Division, FBI (“Blake Statement”) at FBI 61-64, ECF No. 25-30. According to Blake, he did not nominate the plaintiff for the 2012 Director's Award because he did not feel that the plaintiff's contribution to the team was critical to the success of the project, noting that, in his view, the plaintiff was “mainly a conduit for the flow of information between the team and one entity, ” and “[s]he was not one of the managers overseeing the details of the project or one of the designers or programmers who created Sentinel.” Id. at 64. Moreover, Blake cited the fact that the plaintiff's most recent contribution to the team was in September 2011, nearly a year before the project was completed in July 2012. Id. Moreover, Blake understood that “[g]roup nominations [for the award] are limited to 15 nominees.” Id. at 63. Jeffrey Johnson, the Assistant Director of the Information Technology Management Division at the FBI, who made the final decision about nominees for the award, agreed with Blake. See Def.'s Mot., Ex. 23 (“Blake Dep.”) at 30:14-15, ECF No. 25-27, Ex. 27, Sworn Statement of Jeffrey C. Johnson, Assistant Director, Information Technology Management Division, FBI (“Johnson Statement”), at FBI 58-59, ECF No. 25-31. Shortly before filing this action, in October 2014, the plaintiff also learned that a group of her co-workers had received another award, the 2013 Attorney General's Award for Excellence in Information Technology (“AG's Award”). FAC ¶ 66.

         C. Procedural History

         Beginning as early as February 2012, when the plaintiff requested informal counseling when her first request to return to work was denied, and continuing until she filed this action, the plaintiff had several interactions with the FBI's OEEOA. FAC ¶¶ 11-16. On April 13, 2012, she filed her first formal EEO complaint, id. ¶ 37, alleging discrimination and retaliation because of the FBI's denial of her request to return to work for two hours per day, see Def.'s Mot., Decl. of Jessika Rovell, Supervisory Attorney-Advisor, Unit Chief, Complaint's Processing Unit, OEEOA, FBI (“Rovell Decl.”), at ¶ 4, ECF No. 25-4. On October 25, 2012, the plaintiff filed her second EEO complaint, alleging discrimination as well as retaliation for prior EEO activity when she became aware that she did not receive the 2012 Director's Award. Id. ¶ 5. The FBI completed two Reports of Investigations, which were received by the plaintiff on September 13, 2012 and April 11, 2013, respectively. FAC ¶ 11; see also Def.'s Reply Supp. Mot. Summ. J. & Mot. Dismiss (“Def.'s Reply”), Ex. 44 (excerpts of the second administrative Report of Investigation), ECF No. 38-9. She subsequently withdrew her hearing requests on July 31, 2014, FAC ¶ 13, and her cases were dismissed, Rovell Decl. ¶¶ 6-7.

         Following the OEEOA's final action of dismissal for both matters, the plaintiff, on August 28, 2014, filed the instant lawsuit, alleging claims of failure to provide a reasonable accommodation, disparate treatment because of a disability, and a claim of retaliation because of protected activity, see FAC ¶ 4, and an amended complaint in March 2015, to add a third claim of retaliation based on her exclusion, in the Fall of 2014, from the nominee list for the 2013 Attorney General's Award, see Pl.'s Opp'n at 44; FAC ¶ 137. Initially, the Court issued a Scheduling Order closing discovery by October 9, 2015. See Minute Order, June 8, 2015. After two extensions were granted, discovery closed on April 8, 2016. Minute Order, December 29, 2015. Two months later, on June 20, 2016, the defendant filed the instant motion.


         A. Motion for Summary Judgment

         Federal Rule of Civil Procedure Rule 56 provides that summary judgment shall be granted “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 moving party bears the burden of demonstrating the “absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on ...

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