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Richardson v. Powell

United States District Court, District of Columbia

March 21, 2019

EDWARD RICHARDSON, Plaintiff,
v.
JEROME H. POWELL, Chair, Board of Governors of the Federal Reserve System, Defendant.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.

         Edward Richardson, who suffers from asthma, sues the Federal Reserve Board of Governors, his former employer, alleging workplace discrimination and discharge because of his disability, in violation of the Rehabilitation Act. The government argues that Mr. Richardson was terminated due to problems with his background security check and performance issues. Both parties move for summary judgment.[1] Having reviewed the parties' briefs and the record, the Court will grant the government's motion for summary judgment and deny Mr. Richardson's cross-motion for summary judgment.

         I. BACKGROUND

         A. The Board's Explanation of Mr. Richardson's Termination

         The government tells one story of Mr. Richardson's employment:

         From June 8, 2009, until June 7, 2010, Edward Richardson was employed by the Board of Governors of the Federal Reserve System (the Board) as a provisional Law Enforcement Officer (LEO) in the Law Enforcement Unit (LEU). Def's SOF ¶ 1. Board officers are responsible for the physical security of Board premises and stand a variety of posts at the Board's facility in Washington, D.C. Id. ¶ 2. Pursuant to the job description, a Board LEO “[w]orks under demanding mental and physical conditions, ” “[m]ust successfully pass a background investigation, ” “[m]ust be prompt, ” and “[w]orks rotating shifts, weekends and holidays as dictated by the unit's need to provide sufficient security coverage on a 24 hour basis, 7 days a week.” Id. ¶ 3.

         Mr. Richardson's offer letter stated that his appointment was “subject to the Board's one-year provisional employment period” and “contingent upon” his “[s]uccessful completion of a background investigation, which includes a national agency check with written inquiries (SF-86).” Id. ¶ 4. The offer letter also informed Mr. Richardson that his “background investigation will be initiated after you begin employment with the Board. If for any reason the Board identifies a problem pursuant to that investigation the Board has the right to terminate your employment at that time.” Id. ¶ 5.

         Mr. Richardson signed his SF-86 background investigation questionnaire on August 28, 2009, certifying that in the last seven years he had not been “1. Fired from a job”; “2. Quit a job after being told you would be fired”; “3. Left a job by mutual agreement following charges or allegations of misconduct”; “4. Left a job by mutual agreement following notice of unsatisfactory performance”; or “5. Left a job for other reasons under unfavorable circumstances.” Id. ¶ 6. Despite this certification, Mr. Richardson's Office of Personnel Management (OPM) background investigation reported that he had been charged with misconduct by his previous employer, the Prince William County Police Department, and that that Department issued a termination letter to Mr. Richardson in April 2009, after a hearing on the charges at which Mr. Richardson was found to be “misleading and untruthful.” Id.

         Mr. Richardson also had problems while working for the Board. On March 4, 2010, Mr. Richardson allowed a vehicle with six passengers to enter the Board's parking garage without checking the passengers' identifications as he was required to. Id. ¶ 9. In addition, he had “repeated unapproved incidents of tardiness” during his year with the Board. Id. ¶ 10; see also Def.'s Mot., Ex. C, Appeals Termination Letter [Dkt. 137-2] at 3.

         Based on the results of his background investigation and these performance issues, the Board terminated Mr. Richardson at the end of his provisional employment period. Def.'s SOF ¶ 11. The Board affirmed this decision on internal appeal, citing Mr. Richardson's lack of candor in the background investigation process as an additional basis for his termination. Id. ¶ 12; Appeals Termination Letter.

         B. Mr. Richardson's Explanation for His Termination [[2]]

         Mr. Richardson tells another story about his time at the Board:

         Mr. Richardson is a military veteran, who came home from war with lung problems that led to asthma. In November 2009, shortly after completing basic training with the Board, Mr. Richardson was put under the supervision of Sergeant Robert Bakale. Pl.'s Cross-Mot., Ex. A, Aff. of Robert Bakale (Bakale Aff.) [Dkt. 139-1] at 139.[3] Around that time Mr. Richardson verbally informed Sgt. Bakale that he suffered from asthma. Id. Mr. Richardson alleges that around this same time he asked Sgt. Bakale for a reasonable accommodation due to his asthma, “only to accommodate my disability related call-offs, and to attend disability related medical appointments.”[4] Am. Compl. [Dkt. 8] ¶¶ 13-14. Although Sgt. Bakale allegedly promised to relay this request to LEU managers, Mr. Richardson's request went unacknowledged. Id. ¶¶ 12-13.

         Notwithstanding his alleged request for an accommodation, over the next few months the Board logged multiple call-offs and incidents of late arrival (tardiness or “tardies”) for Mr. Richardson.[5] Pl.'s Cross-Mot., Ex. B, Bakale Call-Off Email [Dkt. 139-2] at 64-66. Although some of these call-offs were excused, many were not and Mr. Richardson was progressively disciplined as a result. Id. (listing 10 unexcused call-offs, 4 excused call-offs, and 5 tardies). Mr. Richardson alleges that he had medical documentation excusing all of his call-offs but that his supervisors removed the medical documentation from his file “to promote an adverse action, as well as render the impression that [he] never produced supporting documentation for any of his disability related call-offs.” Pl.'s Cross-Mot. at 7-8.

         Mr. Richardson was also the subject of teasing at the workplace-another Board officer, Himanshu Bhatia, called him “sumo, ” allegedly on account of his “height to weight ratio.” Am. Compl. ¶ 192; see also Pl.'s Cross-Mot., Ex. A, Aff. of Himanshi Bhatia (Bhatia Aff.) [Dkt. 139-1] at 263. Mr. Richardson alleges that this name calling was sanctioned by his supervisors in retaliation for his request for reasonable accommodations. Pl.'s Cross-Mot. at 11. Mr. Richardson alleges further indignities due to his disability: he was denied a promotion to Senior LEO, Am. Compl. ¶ 193; assigned to three different work shifts, id.; denied placement in a desirable “hybrid” shift, id. ¶ 197; and given unfavorable performance reviews, id. This discriminatory treatment allegedly culminated in his unlawful termination.

         Although Mr. Richardson's complaint alleges a variety of federal and common law claims, all but his claim under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., have earlier been dismissed.[6] After extensive discovery, both parties now move for summary judgment.

         II. LEGAL STANDARD

         Rule 56 of the Federal Rules of Civil Procedure states 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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is “material” if it is capable of affecting the substantive outcome of litigation. Anderson, 477 U.S. at 248. A dispute is “genuine” if there is sufficient admissible evidence such that a reasonable jury could return a verdict for a non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

         Summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party's favor. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252. The nonmoving party must point to specific facts showing that a genuine issue of material fact requires trial. Celotex, 477 U.S. at 324. The nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50. “While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of his obligation to support his allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.” Hussain v. Principi, 344 F.Supp.2d 86, 94 (D.D.C. 2004) (quoting Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. March 31, 1998)).

         The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability” may “be subjected to discrimination” by any federal agency “solely by reason of her or his disability.” 29 U.S.C. § 794(a). The Act further provides that “[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under . . . the Americans with Disabilities Act of 1990 (42 U.S.C. § 12111 et seq.).” Id. § 794(d). Indeed, because the Rehabilitation Act and ADA are similar in substance, cases brought under one statute are often analyzed in a manner similar to the other.[7] See Chenari v. George Washington Univ., 847 F.3d 740, 746 (D.C. Cir. 2017).

         III. ANALYSIS

         A. Termination Because of Disability

          The core of Mr. Richardson's case is that the Board terminated his employment because of his asthma. In response, the Board has articulated a series of legitimate, non-discriminatory reasons for his termination. Mr. Richardson attributes several other wide-ranging, allegedly discriminatory reasons to the Board's decision. Unlike some other discrimination statutes which allow for mixed-motive theories of discrimination, the Rehabilitation Act states that a violation of the law occurs only when an employee is discriminated against “solely by reason of” his disability. 29 U.S.C. § 794(a) (emphasis added); cf 42 U.S.C. § 2000e-2(m) (stating that, under Title VII, “race, color, religion, sex, or national origin” may not be “a motivating factor for any employment practice, even though other factors also motivated the practice” (emphasis added)). Thus, “a plaintiff seeking vindication under the Rehabilitation Act must prove that his disability was the ‘sole' or ‘but-for' reason for the employer's actions or inactions, regardless of whether the plaintiff advances a claim of discrimination based on disparate treatment, mixed-motive, or retaliation.” Gard v. Dep't of Educ., 752 F.Supp.2d 30, 36 (D.D.C. 2010) (quoting 29 U.S.C. § 794(a)). As applied in this context, even if Mr. Richardson can prove that he was terminated at least in part for discriminatory reasons, Mr. Richardson's claim will still fail if the Board can support its legitimate, non-discriminatory reason for terminating him, because Mr. Richardson will have failed to demonstrate that he was terminated “solely” because of his disability.

         1. Background Investigation

         The Board contends that Mr. Richardson was terminated predominately because his background investigation revealed significant, unfavorable information that he had failed to disclose about his prior employment as an officer with the Prince William County Police Department. See Def.'s Mot., Ex. A, Termination Letter [Dkt. 137-1]. When deciding whether to retain Mr. Richardson at the end of his probationary period and after the completion of his background check, the Board considered, among other things, “misconduct or negligence in prior employment or outside employment.” Id. at 1; see also Def.'s Mot., Ex. H, Bd. Suitability Policy [Dkt. 137-8] at 3. The background investigation revealed that Mr. Richardson: (1) resigned in lieu of being fired from the Prince William County Police Department; (2) violated that Department's general orders 2.01-C(16), 2.01-C(31), and 27.04-E, and was misleading and untruthful, resulting in that Department's decision to terminate him; (3) was involved in two automobile accidents, which the Prince William County Police Department determined he could have prevented; and (4) received a letter of reprimand for failing to arrest a mall security guard, in violation of the Prince William County Police Department's general order 39.02. See Termination Letter at 2-3; Def.'s Mot., Ex. J, OPM Background Investigation [137-10]. The Board described these as “very significant problems” which alone “could result in an employee being deemed unsuitable for Board employment.” Termination Letter at 2.

         Mr. Richardson responds by alleging that the negative marks on his record are the result of pervasive racial discrimination, harassment, and retaliation at the Prince William County Police Department. But this argument is unavailing. Even if Mr. Richardson's unsubstantiated attacks on the Prince William County Police Department were true, he was the one who failed to report the relevant events (with or without explanation) on his SF-86 and elsewhere. Indeed, during his internal appeal of his termination from the Board, Mr. Richardson advanced his allegations about the Prince William County Police Department, the Board gave Mr. Richardson several opportunities to meet with the appeals officer to provide evidence of his charges, and Mr. Richardson ultimately declined to meet with her and provided no “independent or corroborating information” to support his “conclusory assertions.” Def.'s Mot., Ex. B, Appeals Termination Letter [Dkt. 137-2]. Although Mr. Richardson has now filed additional information with this Court in an attempt to prove his claims regarding the Prince William County Police Department, that information was not before the Board when it made its decision, is therefore irrelevant to the Board's decision under review, and is not entirely exculpatory.[8]Given the available evidence before the Board, no reasonable juror could find that the background investigation report prepared by OPM was erroneous or that the Board's reliance on it was triggered by discriminatory intent because of Mr. Richardson's disability.

         2. Misstatements in Employment Application and Background Investigation Materials

         A second reason the Board terminated Mr. Richardson was his failure to provide accurate facts related to his prior employment on forms and during interviews before he was hired by the Board. When deciding whether to retain Mr. Richardson at the end of his probationary period, the Board considered “the provision of false or misleading information on an employment application, in connection with an employment application, or in response to an inquiry or investigation to determine employment suitability.” Termination Letter at 1; see also Bd. Suitability Policy at 3. ...


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