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COX v. Nielsen

United States District Court, District of Columbia

March 26, 2019

NICOLE COX, Plaintiff,
v.
KRISTJEN NIELSEN,[1] Secretary, U.S. Department of Homeland Security, Defendant.

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, U.S.D.J.

         Nicole Cox was hired as a Secret Service police officer, but the Service did not retain her beyond her three-year probationary period. She alleges that the Secret Service's decision was based on her disability, in violation of the Rehabilitation Act of 1973, and gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. She also alleges that the Service failed to accommodate her disability in violation of the Rehabilitation Act.[1] The Secretary of Homeland Security, who oversees the Secret Service, moved for summary judgment, and the Magistrate Judge's Report and Recommendation ("Report") recommends granting her motion. The Court will accept the Report over Ms. Cox's objections and grant summary judgment to the Secretary.[2]

         Before the Court are Ms. Cox's objections to the Report. Supp. Obj., ECF No. 32.[3] When a party objects to a magistrate judge's Report, the Court reviews de novo any part of the magistrate judge's disposition to which a party properly objects. Fed.R.Civ.P. 72(b)(3). The district court may then "accept, reject, or modify the recommended disposition." Id.

         Upon consideration of the Report, Ms. Cox's objections, the Secretary's response, the briefing on the motion for summary judgment, and the entire record, the Court will adopt the findings and conclusions of the Report in full. Having reviewed this case de novo, the Court agrees with the entirety of the Report and will adopt and incorporate its analysis and conclusions as its own. The Court provides supplemental analysis here in response to Ms. Cox's objections.

         Summary judgment is appropriate when "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). Moreover, "[i]f the [non-movant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). Once the moving party meets its burden, the non-moving party must designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         a. The Secret Service had legitimate, nondiscriminalory reasons for not converting Ms. Cox to career status.

         Ms. Cox does not object to the Report's finding that the Secret Service had legitimate, nondiscriminatory reasons for not converting her to career status.[4] So even if Ms. Cox could establish aprimafacie case of discrimination, under the burden-shifting framework applicable to discrimination claims, she must show that the Service's proffered reason is a pretext for discrimination. See, e.g., Hatter v. Wash. Metro. Area Transit Auth., 244 F.Supp.3d 132, 136 (D.D.C. 2017). That is, Ms. Cox must show that her gender or disability was the actual reason for her non-conversion. See Brady v. Office of Serg. at Arms, 520 F.3d 490, 493-95 (D.C. Cir. 2008) (Title VII); Butler v. Wash. Metro. Area Transit Auth., 275 F.Supp.3d 70, 81 (D.D.C. 2017) (Rehabilitation Act). But she does not dispute the Report's findings regarding job performance issues that supported the Secret Service's decision, see R&R at 25. She has not shown that her disability or gender, rather than her performance issues, motivated the Secret Service's decision.[5]

         b. Ms. Cox was not a "qualified individual" under the Rehabilitation Act.

         Ms. Cox's discrimination and failure-to-accommodate claims under the Rehabilitation Act both fail. To establish a discrimination claim under the Rehabilitation Act, Ms. Cox must show that she was a "qualified individual with a disability." See Badwal v. Bd. of Trustees of the Univ. of D.C, 139 F.Supp.3d 295, 308 (D.D.C. 2015). So too for failure-to-accommodate claims. See Id. at 312. But Ms. Cox is not a "qualified individual," because she could not perform the essential functions of her job when the Secret Service decided not to convert her to career status.[6] See Dr. Miller Assessment at 1, ECF No. 26-19 (Ms. Cox's status: "Not medically qualified to perform the essential functions of the job").

         Ms. Cox objects that the Report relies on the wrong adverse employment action date to assess whether she was qualified at the time of her non-conversion. Not so. The Report evaluated whether Ms. Cox was a qualified individual as of October 12, 2011, the date she received notice that she would not be converted to a career employee. See R&R at 17-20. And a "notice of termination itself constitutes an adverse employment action, even when the employer later rescinds the termination." See Shultz v. Congreg'n Shearith Israel of N.Y.C, 867 F.3d 298, 305-06 (2d Cir. 2017) (citing Green v. Brenncm, 136 S.Ct. 1769 (2016); Chardon v. Fernandez, 454 U.S. 6 (1981); and Del. State College v. Ricks, 449 U.S. 250 (1980)).

         In any event, using Ms. Cox's proposed date-November 12, 2011-gets her out of the frying pan but into the fire. First, Ms. Cox appears to misplace the burden. See Sub. Obj. at 3-8 (arguing that medical evidence did not prove Ms. Cox "could not be a 'qualified individual' in November 2011"). The plaintiff must show a genuine dispute whether she was a qualified individual at the time of the adverse employment action. See Butler, 275 F.Supp.3d at 75. But she has pointed to no evidence from around November 2011 suggesting that she could perform the essential functions of her job. And her failure to direct the Court to this evidence dooms her claim, because she has the burden to establish aprimafacie case under the Rehabilitation Act. See Brown v. PSI Servs., Inc., 736 F.Supp.2d 234, 236 (D.D.C. 2010) ("a moving party may succeed on summary judgment by pointing to the absence of evidence proffered by the non-moving party").

         Indeed, the evidence suggests that before, on, and after November 12, 2011, Ms. Cox could not perform the essential functions of her job. In the months before November 2011, two doctors determined that Ms. Cox was unable to wear a gun belt. See Dr. Pfeifer Assessment at 2, ECF No. 26-18; Dr. Small Assessment at 2, ECF No. 26-17. Based on those opinions and other medical evidence, Dr. Miller found that Ms. Cox was not qualified to perform the essential functions of her job as of October 12, 2011. See Dr. Miller Assessment at 1-2.[7]

         While Dr. Pfeifer and Dr. Small "anticipated" that Ms. Cox would recover, speculative predictions about how Ms. Cox would progress do not create a genuine issue of fact whether months later Ms. Cox had, in fact, recovered. Cf, Mazza v. Bratton, 108 F.Supp.2d 167, 175 (E.D.N.Y. 2000) (finding that a doctor's note stating that "plaintiff would be able to return to his duties with accommodations if he responded well to intensive medical therapy" did not establish a question of fact whether the plaintiff was a qualified individual). Ms. Cox can point to no medical evidence from around November 2011 that shows she had in fact recovered.

         More, in October 2011, Ms. Cox suffered a seizure, after which, by her own admission, she could not drive or carry a gun for six months, Cox Dep. at 12 ("once you have a seizure, you're no longer allowed to carry a weapon").[8] See Ex. V, 22-3. The doctors' predictions that Ms. Cox would fully recover were made before this incident and so did not account for it. Indeed, Dr. Small based her August 2011 prediction that Ms. Cox would fully recover within six months on the assumption that Ms. Cox "does not have additional medial impairments." Dr. Small Assessment at 2.[9] And well in to 2012, Ms. Cox sought treatment for pain. See Dr. Marvel Assessments (March and December 2012), Ex. 3, ECF No. 22-2. All of this suggests that in November 2011 Ms. Cox was not a "qualified individual," and she has pointed to no evidence that would create a genuine dispute of fact that she was.

         c. It is not clear that Ms. Cox requested a reasonable accommodation and, if she did, she was accommodated.

         Ms. Cox's failure to accommodate claim also fails because she has not showed that she requested an accommodation. To carry her burden, Ms. Cox "must supply enough information that, under the circumstances, the employer can be fairly said to know of both the disability and the desire for accommodation." Thompson v. Rice, 422 F.Supp.2d 158, 176 (D.D.C. 2006) (cleaned up). But she has not done so.

         Ms. Cox argues that she pointed to several doctors' notes that stated that while she could not perform the essential functions of her job, recovery was expected in the future. See Supp. Obj. at 9-10. She argues that these notes were evidence that she requested an accommodation. Id. But it is unlikely that the Secret Service could have known from these notes that Ms. Cox desired an accommodation. See Thompson, 433 F.Supp.2d at 176-77 (even requests for "support in following my doctor's instructions" do not necessarily qualify as a request for accommodations).

         Moreover, even if the Court were to interpret the doctors' notes as requests for accommodation, the Service did accommodate Ms. Cox by allowing her to remain on light duty until her term of employment expired. The Secretary maintains that Ms. Cox remained on light duty after her 2010 surgery until her probationary period expired in November 2011. See Statement of Material Fact ¶¶ 4, 12, 14, ECF No. 22-1. She has pointed to no evidence showing otherwise. Based on Ms. Cox's performance issues the Secret Service decided not to convert her to career status, and once Ms. Cox's probationary term expired, the Service did not have to accommodate a non-employee.

         Ms. Cox also points to Dr. Miller's note to argue that the Secret Service should have offered to reassign her as an accommodation. Supp. Obj. at 16. Her argument on this point is far from pellucid. Anyway, "it is the plaintiffs burden to identify available positions and to demonstrate that she was qualified for those positions." Senatore v. Lynch, 225 F.Supp.3d 24, 38 (D.D.C. 2016) (cleaned up). She has not met that obligation. As the Report notes, Ms. Cox may not "skate over this failure of evidence" by claiming that the Secret Service should have engaged her in an interactive dialogue about accommodations. See R&R at 20. In any event, the Secretary has reasonably explained that Ms. Cox was not eligible for reassignment outside the excepted service. See Def. Mot. Summ. J. at 3-5, ECF No. 22. And Ms. Cox has admitted that she did not seek qualification for a "Schedule A" Excepted Appointment. See ECF No. 22-2 at 48 (Cox Interrogatories).

         d. Ms. Cox's objections to (he Report's findings about her comparator evidence are unavailing,

         First, Ms. Cox objects to the Report's recitation of the standards for evaluating comparator evidence, arguing that under Johnson v. U.S. Capital Police Board, 2005 WL 1566392 (D.D.C. July 5, 2005), "whether employees are similarly situated ordinar[ily] presents a question of fact for the jury." Supp. Obj. at 15. But judges may also consider whether employees are similarly situated. See, e.g., Royall v. Nat 7 Ass 'n of Letter Carriers, AFL-CIO, 548 F.3d 137, 145 (D.C. Cir. 2008). And Ms. Cox has not alleged enough facts to allow for the kind of meaningful comparison that would enable a factfinder to conclude that she and her comparators were similarly situated.

         Ms. Cox also argues that she presented evidence of similarly-situated coworkers that she identified from the Secretary's response to interrogatories. See Supp. Obj. at 15 (citing Interrogatories at 4, ECF No. 26-8). It is true that in response to Ms. Cox's request for "similarly situated employees ... who were not converted to career status in the last 5 years" the Secretary identified three males who were not converted for various reasons. Interrogatories at 4. But that response does not establish that those individuals are valid comparators for Ms. Cox's discrimination claims, nor is it an admission to that effect. And other than the fact that these individuals were not converted to career status, Ms. Cox has identified no similarities between her situation and theirs, e.g., that they had the same supervisor. In any event, Ms. Cox has not shown that these employees were treated more favorably than her; they too were terminated. See Dobbs v. Roche, 329 F.Supp.2d 33, 43-44 (D.D.C. 2004) (finding that a plaintiff cannot show discrimination by pointing to similarly situated employees who are "treated identically to the plaintiff).

         e. The Secret Service's reason for not converting Ms. Cox to career status was not a pretext for sex discrimination.

         Ms. Cox's objection to the Report's Title VII findings is unclear. She argues that she "offered evidence identifying similarly situated male coworkers who had engaged in similar conduct who were not similarly disciplined." Supp. Obj. at 16. Presumably, she is referring to the male Uniform Division officer who received a one-day suspension for misplacing his weapon and the "discipline" she claims is her non-conversion. But, as the Report explains, there is insufficient evidence that the circumstances of the comparators' employment were like Ms. Cox's or that his misconduct was "categorically similar," see Evans v. District of Columbia, 219 F.Supp.3d 99, 109-10 (D.D.C. 2016). For example, he misplaced his government property for only 45 minutes, while Ms. Cox went days without knowing where her BlackBerry was. See Cox Dep. at 10. And there is no evidence that the other officer lacked candor when confronted about his missing government property. There is no apples-to-apples comparison here.

         After considering all of Ms. Cox's objections, none has merit. Thus, the Court will adopt in full the findings in the Report and Recommendation and grant the Defendant's [25] Motion for Summary Judgment as recommended. A separate order will issue.

         REPORT AND RECOMMENDATION

         Plaintiff Nicole Cox, a former member of the United States Secret Service (the "Secret Service"), which is a component of the Department of Homeland Security ("DHS"), filed this action alleging that she was terminated from her position on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and on the basis of her disability, in violation of section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. Defendant, the Secretary of DHS, has filed a motion for summary judgment on both of Plaintiff s claims, which is now ripe for adjudication.[2] For the reasons that follow, the undersigned recommends granting Defendant's motion.

         I. BACKGROUND[3]

         In this case, approximately two years after Plaintiff was hired as a probationary employee of the Uniformed Division of the Secret Service, she experienced a medical issue and was reassigned to light duty. At the crux of this action is Defendant's failure to convert Plaintiff to a career employee of that agency at the end of her three-year probationary period. Plaintiff argues that Defendant's conduct constitutes an illegal failure to accommodate her disability and that the asserted reasons for the failure to convert-which include performance issues such as an inability to execute her light duty job functions without supervision, inappropriate emotional responses at work, failure to maintain connectivity on her BlackBerry, and a lack of candor to superiors when she temporarily lost that device-are pretexts for intentional discrimination based on disability and gender.

         Plaintiff was hired as a Uniformed Division Officer, LE l, [4] in the Secret Service on July 17, 2008. ECF No. 26-24. The position was a "Schedule B" term-limited excepted service[5] position that terminated on November 11, 2011, unless it was "converted to career status after ... three years of full-time continuous service." Id.; ECF No. 26-20 at 1. The purpose of the three-year "trial period" was to allow the supervisor to observe the employee's conduct and performance, provide guidance, and evaluate her potential to "determine whether the employee is suited for successful performance in the position." ECF No. 26-27 at 1. According to the position description, a Uniformed Division Officer's duties include, among other things, standing fixed posts or patrolling on foot or by vehicle; physically responding to security alarms and taking appropriate response action, such as using appropriate physical force to apprehend individuals involved; and taking "decisive and immediate action in emergency situations," such as using "sufficient force to quell disturbances and arrest individuals." ECF No. 22-3 at 53. Among the required "[t]echnical [competencies" for the position are "[s]kill in the use of firearms above the degree necessary for qualification," the "[a]bility to remain calm in a crisis and exercise independent judgment during emergencies," and the "[a]bility to communicate with high-level government officials as well as with the general public in a variety of situations." Id. at 54. Plaintiff successfully completed her Uniformed Division training course on February 10, 2009, and was commissioned as a Secret Service Uniformed Division police officer. ECF No. 26-29 at 1. Plaintiff was first assigned to the White House complex. ECF No. 22-3 at 16. During the period Plaintiff was on full duty, her performance reviews did not reflect a rating lower than acceptable. ECF Nos. 26-28 through 26-32.

         On May 13, 2010, Plaintiff began suffering pain in her lower pelvic region; she was later diagnosed with endometriosis.[6] ECF No. 26-16 at 3. She had surgery on May 18, 2010, and was placed on medical leave for three weeks, with restrictions on running, prolonged standing or walking, jumping, climbing stairs, using firearms, wrestling, grappling, twisting, and lifting, among other activities. Id.; ECF No. 26-26. At the end of that period, on June 9, 2010, she reported to the Secret Service that she was still recovering. ECF No. 22-3 at 16. She was therefore placed on "limited duty status" with the Safety and Health Unit, where she performed administrative duties, including data entry and filing. ECF No. 22-3 at 16, 94; ECF No. 26-3 at 4. On Plaintiffs midyear performance review, issued on February 22, 2011, Sgt. Matthew Isaacson indicated that she was "meeting all elements in an acceptable manner" and noted that two special agents who supervised her in the Safety and Health Unit-Special Agent in Charge Armiger and Assistant to the Special Agent in Charge Hourican-had commended her work product and work ethic. ECF No. 26-34 at 4. On May 8, 2011, she received a cash award for her job performance. ECF No. 26-11. In her final appraisal for the period ending June 30, 2011, which was submitted on July 13, 2011, and approved on July 14, 2011, she received no rating lower than "acceptable," and received an "exceeded expectations" rating in technical proficiency. ECF No. 26-35. The appraisal again noted that two of her supervisors had commended her performance. Id. at 4.

         In July 2011, supervisors began noting performance issues. ECF No. 26-8 at 5. On July 20, 2011, Plaintiff had a meeting with Special Agents Armiger and Hourican. ECF No. 26-3 at 4-5.[7] At the meeting, the special agents expressed concerns about productivity and informed Plaintiff that the student intern who worked with her required more structure in order to complete his duties. Id. at 5. Therefore, they required him to be in the file room four hours per day and to count each piece of paper he filed. Id. To show that the intern and Plaintiff were "working as a team," Special Agents Armiger and Hourican requested that Plaintiff also be in the filing room four hours per day and similarly keep track of the filing she completed. Id. This would allow them to determine how much filing was getting done and by whom. ECF No. 26-8 at 4. They also asked Plaintiff to open the medical filing room, although, according to Sgt. Cook, her immediate supervisor, that was not part of her job duties as a limited duty officer temporarily assigned to the Safety and Health Unit. ECF No. 26-3 at 5. After the meeting, Plaintiff was upset and crying because she felt that she was being punished for the intern's failure to complete his duties and that her medical restrictions prevented her from filing for four hours per day. Id. at 6. At some point that day, Sgt. Cook asked Plaintiff if she wanted to remain in the Safety and Health Unit. Id. Plaintiff sought a transfer. Id.

         Sgt. Cook testified that this was one of a number of times that she saw Plaintiff respond in an "extremely emotional" manner to work situations. ECF No. 26-4 at 8-10. Sgt. Cook also testified that she began to have concerns about Plaintiff s job performance, specifically with her emotional and behavioral responses. Id. at 5-6. Deputy Chief Thomas Sullivan, who was near the top of Plaintiffs chain of command, similarly testified that he witnessed her emotional responses and also noted a drop in her performance rate in the Safety and Health Unit. ECF No. 26-6 at 16-17.

         Effective July 25, 2011, Plaintiff was transferred to the Security Clearance Division. ECF No. 22-2 at 2. She was transferred out of that office at the request of her supervisor after one day because she was able to complete data entry on only two of six assigned files, and the data she entered needed to be corrected. ECF No. 26-25 at 2. She was then assigned to the Central Files Office, where her duties consisted of shredding files. Id.; ECF No. 26-3 at 8.

         Meanwhile, Plaintiff had trouble with her BlackBerry. A uniformed officer must maintain connectivity of her BlackBerry at all times. ECF No. 26-7 at 10. On five occasions between November 2010 and June 2011, a technician contacted Sgt. Cook to alert her that Plaintiffs device had been incommunicado for periods of days. ECF No. 22-3 at 102-06. On July 30, 3011, Plaintiff misplaced her BlackBerry. ECF No. 26-3 at 10. At a meeting on August 1 or 2, 2011, with Sgt. Cook and Inspector Marty Wilkerson, Plaintiff was reminded to maintain the connectivity of her BlackBerry and asked if her device was functioning properly, to which she replied that the BlackBerry was functioning properly and she was having no connectivity issues. ECF No. 26-3 at 10; ECF No. 26-15 at 2; ECF No. 26-25 at 2. Specifically, Plaintiff testified at her deposition as follows:

Q. [I]n the August 2nd meeting, what did Inspector Wilkerson ask you about your BlackBerry?
A. He asked me if my BlackBerry was functioning properly and if I had any connectivity issues.
Q. Okay. And how did you respond?
A. I responded that my BlackBerry was functioning properly and I didn't believe I was having any ...

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