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Savage v. Azar

United States District Court, District of Columbia

March 28, 2018

WANDA SAVAGE, Plaintiff,
v.
ALEX AZAR, Secretary, U.S. Department of Health and Human Services, [1] Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. Background

         A. Factual History

         1. Savage's History with the Department

         Throughout 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.

         In 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.

         Around 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.

         Savage 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).[2] 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).

         Meanwhile, 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.

         Mr. 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.

         The 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.

         Savage 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.

         By 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.

         When 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 lawsuit.)

         2. Savage's Accommodation Requests

         Savage 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.

         In 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.

         Several 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.

         Regarding 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.

         Scheduling 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.

         Meanwhile, 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.

         There 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).

         B. Procedural History

         In 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 ...


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