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 ...