United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
Alita Mack alleges that she suffered discrimination and
retaliation by her then-employer Georgetown University in
violation of the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq. Defendant Georgetown
University moved for summary judgment on November 3, 2016,
see Mot. [Dkt. 56], and this matter was referred to
Magistrate Judge G. Michael Harvey for a Report and
Recommendation. See November 17, 2016 Minute Order.
Ms. Mack filed an opposition to Georgetown's summary
judgment motion and multiple erata, see Opp'n
[Dkt. 71]; Errata 1 [Dkt. 74]; Errata 2 [Dkt. 75], to which
Georgetown replied. See Reply [Dkt. 82]. Magistrate
Judge Harvey proceeded to review the briefing carefully and
thoroughly and submitted his Report and Recommendation
(R&R) to this Court on August 4, 2017. See
R&R [Dkt. 87]. Ms. Mack filed a timely objection to the
R&R, see Objection [Dkt. 88], Georgetown
responded, see Response [Dkt. 89], and Ms. Mack was
granted permission to submit an amended objection.
See Am. Objection [Dkt. 91].
consideration of the R&R, amended objection, and
response, and an independent review of the underlying
evidence, the Court will accept in full Magistrate Judge
Harvey's Report and Recommendation and grant
Georgetown's motion for summary judgment.
Judge Harvey's Report and Recommendation contains a
detailed procedural history and factual background section,
which the Court adopts and will not repeat in full here.
See R&R at 5-21.
Mack was hired by Georgetown as an Executive Assistant in the
Department of Public Safety on February 19, 2014. Def. Ex. 9
[Dkt. 57-9] at GU001982. Her supervisor was Georgetown's
Chief of Police, Jay Gruber. Def. Ex. 10 [Dkt. 57-10] at
GU002602. About four months after Ms. Mack starting work, she
submitted a disability accommodation request to Michael
Smith, the Director of Affirmative Action Programs at
Georgetown. Def. Ex. 13 [Dkt. 57-13] at GU000360-01. Ms. Mack
indicated that she had diabetes and requested eleven
accommodations including a discrete environment to monitor
her blood sugar level, an area to store food and medication,
and flexibility to schedule medical appointments. Am. Compl.
[Dkt. 14] ¶ 13. The accommodations were agreed upon and
put into effect on July 24, 2014 with the completion of an
accommodation agreement. Def. Ex. 16 [Dkt. 57-16] at
days later, Ms. Mack complained of a mildew odor and possible
mold in her workspace. Def. Ex. 17 [Dkt. 57-17] at
GU002679-81. Georgetown evaluated the space, discovered a
mold spot near Ms. Mack's workspace, disinfected the
mold, and replaced any stained ceiling tiles. Def. Ex. 18
[Dkt. 57-18] at GU002750. A few days later, Ms. Mack
submitted another disability accommodation request form
indicating she was suffering from a respiratory illness,
which was later identified as rhinitis, and requesting
reassignment to a vacant position. Ms. Mack was referred to the
Human Resources department and put on temporary paid leave
until arrangements could be made to move her workspace to
another room. Def. Ex. 25 [Dkt. 57-25] at GU000466; Def. Ex.
26 [58-1] at GU000467. Because Ms. Mack's second
accommodation request stemmed from a new disability, she was
required to engage with Georgetown and her physicians to
develop a new plan under the ADA. For the next few weeks,
Georgetown attempted to get more information from Ms.
Mack's treating physicians, located a new workspace for
Ms. Mack, and conducted additional testing for mold and dust
mites. Def. Ex. 28 [Dkt. 58-3] at GU002756-57; Def. Ex. 29
[Dkt. 58-4] at GU002804-05; Def. Ex. 30 [Dkt. 58-5] at
beginning in August 2014, Chief Gruber expressed concerns
with Ms. Mack's performance. Ms. Mack met with Chief
Gruber on August 4, 2014 and again on August 26, 2014 to
discuss his concerns, including her frequent unapproved
absences and requests to work from home. Def. Ex. 19 [Dkt.
57-19] at GU00455-56; Def. Ex. 32 [Dkt. 58-7] at
Mack continued to request permission to work in a different
building or remotely and was informed that the essential
functions of her position required her to be in the office.
Def. Ex. 34 [Dkt. 58-9] at GU002889-92. On August 28, 2014
Ms. Mack filed a charge with the Equal Employment Opportunity
Commission (EEOC) claiming Georgetown discriminated against
her by ignoring her requests for accommodation and harassed
her in retaliation for asserting her rights. Def. Ex. 41
[Dkt. 58-16] at GU003158-59.
the next two months, Georgetown continued to attempt to work
with Ms. Mack and her physicians to determine the necessary
accommodations, but Ms. Mack prohibited her physicians from
communicating with Georgetown. Def. Ex. 5 [Dkt. 57-5] at
KP0010, KP0041-42, KP0050. Chief Gruber's dissatisfaction
with Ms. Mack's performance grew and on October 14, 2014
Ms. Mack was suspended for three days “based on [her]
continued unacceptable work performance and misconduct
regarding tardiness and failure to follow call-in procedures,
declining calendar appointments and subsequent
untruthfulness, and refusals to meet with [her]
supervisor.” Def. Ex. 44 [Dkt. 58-19] at GU000809-11.
October 17, 2014, Ms. Mack requested to be reassigned to a
vacant position as a reasonable accommodation under her July
2014 ADA plan. Def. Ex. 50 [Dkt. 58-25] at GU003332. After
consulting with Ms. Mack's physician, Georgetown
determined that her diabetes (which was the disability at
issue in the July 2014 accommodation plan) did not warrant
reassignment. Def. Ex. 55 [Dkt. 59-5] at GU003408-09.
Georgetown continued to attempt to work with Ms. Mack to
provide any requested accommodations and in late November Ms.
Mack was placed on unpaid leave while Human Resources
searched for a vacant position to which she could be
transferred. Def. Ex. 64 [Dkt. 59-14] at GU001789.
January 29, 2015 Human Resources offered Ms. Mack a position
as Recruiting Coordinator in the Cawley Career Education
Center and asked for a response by February 2, 2015. Def. Ex.
72 [Dkt. 59-22] at GU003797. Ms. Mack failed to respond and
after meeting with her and evaluating other possible
positions for which she was qualified, Georgetown again
extended an offer to Ms. Mack for a Recruiting Coordinator
position and indicated that failure to accept the position by
March 5, 2015 would result in her termination. Def. Ex. 75
[Dkt. 59-25] at GU003839. Ms. Mack failed to respond and on
March 6, 2015 Georgetown terminated her employment. Def. Ex.
77 [Dkt. 60-2] at GU003903-04.
Mack filed a second EEOC charge against Georgetown on March
11, 2015, Am. Compl. at 41, which was ultimately dismissed
and Ms. Mack was informed of her right to sue in federal
court. Id. at 32. Ms. Mack filed the initial
complaint in this action on May 29, 2015. Compl. [Dkt. 1].
Mack's objection also contains proposed undisputed
material facts and cites to evidence that was not a part of
the record on summary judgment. To the extent those
additional facts are necessary to evaluate Ms. Mack's
objections they will be described below.