United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
Wanda Savage worked for the U.S. Department of Health and
Human Services from 2008 to 2014. She claims that, during her
tenure, the Department took a host of discriminatory and
retaliatory actions against her based on her race, sex, and
disability status; that it retaliated against her for filing
a complaint with the Equal Employment Opportunity Commission;
and that it failed to reasonably accommodate her disability.
The Department has moved for summary judgment. For the
reasons that follow, the Court will grant the motion in part
and deny it in part.
Savage's History with the Department
her time at the Department, Ms. Savage worked in the Office
of the Assistant Secretary for Preparedness and Response,
created after Hurricane Katrina “to lead the nation in
preventing, preparing for, and responding to the adverse
health effects of public health emergencies and
disasters.” Public Health Emergency, U.S. Dep't
Health & Human Servs., https://perma.cc/FPB4-XQ9F
(last visited March 26, 2018). Savage was hired to work in a
sub-office called the Office of Financial Planning and
Analysis (“OFPA”). Decl. of Belinda Thomas
Blackwell Supp. Mot. Dismiss (“Thomas Blackwell
Decl.”) at 1 (ECF No. 44-3). She began working in
September 2008 as a Senior Program Analyst for OFPA's
Management Assurance Division. Id. Ex. 1. She was
hired at the GS-15 level and served as a “Team
Leader” in the Division. Id. At the time,
Savage's immediate supervisor was Brian Sparry, who was
Deputy Director for the Division, a white male and, like
Savage, a GS-15 employee. Decl. of John Joseph Petillo Supp.
Mot. Dismiss (“Petillo Decl. I”) ¶ 2 (ECF
No. 44-4). Her higher-level supervisor was OFPA's
Director, John (“Jay”) Petillo. Id.
March 2009, Petillo granted Mr. Sparry a schedule change that
allowed him to begin work at 7:00 AM and leave at 3:30 PM.
Sparry had applied for this modified schedule as an
accommodation for a recent heart attack. See
Pl.'s Opp'n Mot. Summ. J. Ex. 5, at 135-36. While the
Department did not conclude that Sparry's condition
amounted to a protected disability, Petillo allowed the
reduced schedule anyway because of Sparry's heart
condition and because of a divorce agreement that required
Sparry to be home during certain hours. Id. at 136.
this same time, Petillo authorized Savage to change to a
compressed “5/4/9” schedule-working nine out of
every ten days, but for nine hours (instead of eight) for
most of those days. Pl.'s Opp'n Mot. Summ. J. Ex. 5,
at 134-136. As Team Leader, Savage covered for Sparry when he
was out of the office. Id. at 146.
found the job very stressful and unpleasant, and in several
emails to Petillo throughout 2009 she complained about the
Division's dysfunction. See Pl.'s Opp'n
Mot. Dismiss (“Pl.'s MTD Exs.”) at 87, 92,
126-27 (ECF No. 48). While the details and frequency of their
communication are disputed, it is not disputed that in March
2009 she emailed Petillo that she wanted to be reassigned
outside of the Management Assurance Division. See
id. at 92. Petillo attempted to find Savage a position
in the Department's Office of Finance, but the supervisor
of that office informed him that she was not interested in
accepting Savage for the position. Depo. of John Joseph
Petillo at 107-08 (ECF No. 82-1).
in April 2009, Savage had filed the first in a series of
administrative complaints with the Equal Opportunity
Employment Commission (“EEOC”). She alleged that
she was subjected to a host of adverse actions because of her
race, sex, and disability status. Pl.'s Opp'n Mot.
Summ. J. Ex. 16, at 2. Petillo was interviewed by an EEOC
investigator about at least one of these complaints.
Id. Ex. 11, at ¶ 5.
Sparry was transferred from the Management Assurance Division
to OFPA's Communications Office in November 2009. Petillo
Decl. I ¶ 3. He had sought this transfer as an
accommodation for his heart condition and because the job
caused him “extreme stress.” Pl.'s MTD Exs.
at 272. A memorandum addressed from Petillo to Sparry
explained that, while the Department concluded that his
condition was not a disability for purposes of the
Rehabilitation Act, he would nevertheless grant the transfer
request. Pl.'s Opp'n Mot. Summ. J. Ex. 2. Once Sparry
left the Division, Petillo designated Savage as its Acting
Deputy Director. Petillo became Savage's direct
supervisor. Petillo Decl. I ¶ 2.
parties dispute the extent to which Savage's job duties
changed once she became Acting Deputy Director. Petillo,
citing Savage's performance plans and evaluations (or
“PMAPs”), maintains that her responsibilities
remained largely the same, and that the assumption of the
title of Acting Deputy Director was merely nominal. Petillo
Decl. I ¶¶ 4-7; id. Ex. 1-3. Savage
counters that these same PMAPs demonstrate that she performed
supervisory duties distinct from her previous role. Pl.'s
MTD Exs. at 66. Petillo stated that the Division's
responsibilities were greatly reduced, and that he gave
Savage ample staff and resources to run the Division.
See Second Supp'l Decl. of John Joseph Petillo
Supp. Mot. Summ. J. (“Petillo Decl. II”) ¶ 3
(ECF No. 82-1 at 116-17). Savage disagreed; she told Petillo
that the Division was understaffed and underresourced.
Pl.'s MTD Exs. at 111.
was Acting Deputy Director for almost two years. For part of
this time, she was on medical leave following a surgery and
then worked remotely. Petillo Decl. II ¶ 6. Things
remained rocky, however-Savage sought a transfer out of the
Division in April 2010, this time in a three-page email to a
human resources officer. Pl.'s MTD Exs. at 148-50.
January 2011, Savage had returned to the office and was
working on her 5/4/9 schedule. That March, Petillo asked
Savage whether she would be interested in assuming the Deputy
Director role permanently. Petillo Decl. I ¶ 8. He
explained that she-like all permanent Deputy Directors-would
be required to give up her 5/4/9 schedule because the
Department preferred supervisors to be in the office all the
time. Id.; see also Pl.'s Opp'n
Mot. Dismiss at 228-30. Savage, not wanting to relinquish her
schedule, declined the position. Petillo Decl. I ¶ 9. A
few months later, Petillo advertised the job throughout HHS.
Id. Savage applied and, along with five other
candidates, was selected for an interview. Id.
¶ 11. A panel of four employees interviewed those six
candidates and recommended that Petillo choose Javier Lopez
(a Hispanic male) for the position. Id.;
see Blackwell Thomas Decl. Ex. 19. After reviewing
the candidates' written materials, contacting their
references, and consulting with the interview panel, Petillo
hired Lopez, who began working in October 2011. Petillo Decl.
I ¶ 12.
Lopez began as Deputy Director, Petillo notified Savage that
he would be reassigning her outside the Management Assurance
Division: effective January 2012, she would become a Records
Management liaison for OFPA and would report directly to
Petillo. Id. ¶ 21; see Pl.'s MTD
Exs. at 280-81. Petillo explained in a memorandum addressed
to Savage that he had made the assignment “[i]n
response to [her] stated dissatisfaction in your current
role.” Pl.'s MTD Exs. at 280. Savage did not want
to be transferred and sent emails to that effect to Petillo
and other Department officials. Petillo Decl. I ¶ 21.
Department management attempted to mediate the issue, but
those efforts were unsuccessful, and in January Petillo
reassigned Savage as planned. Id. Savage worked in
her new position for nearly three years until she was
terminated from the Department in 2014. Id. ¶
2. (That ultimate termination is not relevant to this
Savage's Accommodation Requests
had been injured in a car accident in 2007 and experienced
complications from knee surgeries following the accident.
Pl.'s Opp'n Mot. Summ. J. Ex. 24, at 1-2. During her
employment with the Department, she requested accommodations
related to injuries stemming from the accident and surgeries.
In March 2011, Savage lodged a request with the
Department's human resources department seeking two
accommodations: an office large enough for ergonomic
equipment, and permission to work remotely from her home.
Decl. of Christopher Tully Supp. Def.'s Mot. Summ. J.
(“Tully Decl.”) Ex. 1, at Bates No. 25-2358 (ECF
No. 80-3). Savage authorized the Department to seek her
medical records from her orthopedic surgeon, Dr. Peter
Glieberman, to corroborate her request. Id. at
25-2308. The request was forwarded to Federal Occupational
Health-an agency that reviews accommodation requests-which
assigned it to one of its staff physicians. Id. at
25-2349, -2354. In April, that physician faxed Dr. Glieberman
a series of questions about Savage's condition and
evaluation. Id. at 25-2325. The fax was confirmed as
received, but Dr. Glieberman never responded. Unable to reach
Dr. Glieberman after several attempts, in May 2011 Federal
Occupational Health notified the Department's human
resources officer that it lacked “sufficient
information to determine whether or not Ms. Savage is a
person with a disability, nor to make a recommendation in
this case. Should further information become available, her
case can be reconsidered.” Id. at 25-2349.
September 2011, at the Department's urging, Federal
Occupational Health tried twice more to call Dr. Glieberman
and sent him another fax. Id. at 25-2313 to -2314.
It still received no response and informed the Department
that it had been unsuccessful. Id. at 25-2309. A
month later, Petillo informed Savage by letter that he was
denying her accommodation requests, as Federal Occupational
Health had not received the necessary documentation of her
condition from her medical providers. Id. at 25-2302
to -2303. The letter concluded, “If in the future, you
do provide documentation from your physician establishing
medical need and [Federal Occupational Health] recommends
that your requests should be granted, I will be happy to
reconsider my decision.” Id. at 25-2303.
months later, in January 2012, Savage sent Petillo copies of
her MRI results, which he forwarded to human resources the
same day. Id. at 25-2296 to -2298. The next day,
Petillo provisionally approved Savage for full-time telework.
Id. at 25-2204 to -2205. Federal Occupational Health
then reviewed the MRIs and, in June 2012, Petillo formally
approved Savage for a three-month period of telework, subject
to renewal. Tully Decl. Ex. 2, at Bates No. 25-912 to -916
(ECF No. 80-3). Savage's telework arrangement was
consistently renewed until she left the Department.
her request for a larger office: Before her period of medical
leave, Savage had a 91-square-foot office in the Hubert H.
Humphrey Building in Southwest Washington, D.C. Id.
at 25-502. When she returned in January 2011, she was
assigned to a 110-square-foot office in the Mary E. Switzer
Building-located across the street from her old building-to
allow for the installation of ergonomic equipment she had
previously requested. Id. Still seeking more space,
Savage in February told Petillo that she had noticed a larger
office that was empty and asked if she could move into it.
Id. at 25-1358 to -1359. Petillo asked an OFPA
administrator about the office and learned that it was being
held for a new employee beginning in March, and that the new
employee needed that particular office because it was close
to others in his division. Id. at 25-1352, -1357.
The administrator told Petillo, however, that he would be on
the lookout for a larger office, and that he would bring in
an ergonomics contractor to inspect Savage's current
office. Id. at 25-1352.
this ergonomics inspection proved difficult. The
Department's usual contractor, Ergonetics, told the
Department that it was not available for the inspection.
Id. at 25-1314. Before hiring another contractor,
the Department learned that a military entity called CAPTEC
could perform an ergonomics evaluation at no cost.
Id. at 25-1311. The Department instructed Savage to
sign up for an evaluation directly with CAPTEC, and gave her
the necessary information to do so in March. She requested
the evaluation in late April and scheduled an office visit
for May 4. Id. at 25-692 to -695.
the Department had signed a lease for office space at another
building a few blocks southwest called “Patriots Plaza
2.” Savage was slated to move to a 120-square-foot
office in that new facility. Id. at 25-532. During
its May evaluation, CAPTEC evaluated Savage's current
office in the Switzer Building but did not inspect her
expected new office at Patriots Plaza 2. Id. It
recommended that Savage work with the Department to telework
and “to obtain a larger office location to allow her to
utilize her assistive technology equipment, ” noting
that “the current office configuration does not allow
her adequate room to adjust her keyboard tray and monitor arm
in proper ergonomic positions.” Id. at 25-537
to -538. Savage had a meeting in June with Petillo and
several Department administrators, where they agreed that an
administrator would visit Savage's Patriots Plaza office,
measure its space, and compare its size to the office that
Savage had previously requested in the Switzer Building.
Id. at 25-508. Savage received the measurements of
her Patriots Plaza office (120 square feet) and the Switzer
Building office (132 square feet). Id. at 25-502.
Savage then moved to the Patriots Plaza office in July.
Id. at 25-496. She sent several emails to Petillo
and Department administrators stating that the office still
was not large enough for her equipment and supplies.
Id. at 25-487 to -498. The Department explained that
no larger office was available but that it was willing to
work with Savage to reconfigure the space to allow for better
functionality. Id. at 25-1284. There is no record of
further communications regarding Savage's office space
after August 2011. See id. at 25-1279 to -1281.
were also issues getting Savage's ergonomic equipment set
up after she returned in January 2011. The trouble began when
the vendor was late in delivering the equipment shortly after
her return. Tully Decl. Ex. 1, at Bates No. 23-849 (ECF No.
80-3). This led to a prolonged back-and-forth between Savage,
Petillo, and several Department administrators about the
installation of various pieces of ergonomic equipment,
including a computer monitor arm, a new mouse, a document
holder, and a magnifier. Id. at 23-851 to -855. The
requested equipment was eventually installed and it appears
that issues regarding the equipment were resolved by July
2011. Tully Decl. Ex. 2, at 25-488 (ECF No. 80-3).
October 2014, Ms. Savage filed a fifteen-count pro
se complaint in the U.S. District Court for the Central
District of California alleging various discrimination claims
arising out of her employment with the Department. That court
dismissed all of the defendants except for the