Weatherspoon v. Azar

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, USD.J.

         This is a case about a civil servant's dissatisfaction with the government's sluggishness in accommodating her disability. While delay is no doubt frustrating, it is not, in this case, unlawful.

         Monique Weatherspoon suffers from a sensitivity to light that can make it difficult for her to travel to her office and to read her computer screen. She works for the U.S. Department of Health and Human Services. The Department tried to address these problems by devising telework arrangements, providing her with a docking station and large monitor so that she could work from home, and providing her with software specifically designed for visually impaired people so that she could read her screen better. Nonetheless, Ms. Weatherspoon sued Secretary Alex Azar on behalf of the Department, ^[1] alleging that the Department failed to accommodate her condition and retaliated against her based on her disability discrimination claim. The Department has moved for summary judgment. For the following reasons, the Court will grant the motion.

         I.

         Ms. Weatherspoon works as a Grants Management Specialist in the Division of Discretionary Grants within the Department's Administration for Children and Families (“ACF”). Compl. ¶ 7, ECF No. 1. She also suffers from severe uveitis. Weatherspoon Dep., ECF No. 19-1 at 6.^[2] Because of her uveitis, she is sensitive to light and has trouble seeing. Id. Her uveitis causes “floaters, ” shapes or dots moving across her vision. Id.

         Based on her condition, the Department granted her a series of accommodations and various telework arrangements. In April 2011, the Department allowed her to work from home two days a week for part of the year and one day a week for the other part of the year. April 13, 2011 Mem., ECF No. 19-1 at 241. In September 2012, the Department went further, allowing her to work from home when her condition made it “difficult or impossible” for her to commute to the office. Jan. 14, 2014 Mem., ECF No. 19-1 at 245.

         Her vision continued to deteriorate. In July 2015, Ms. Weatherspoon emailed the Reasonable Accommodation Coordinator to tell her that she needed a laptop with a screen larger than 17 inches because of her vision condition. Pl.'s Ex., ECF No. 20-1 at 1. She copied her supervisor, Bridget Shea Westfall, on that email. Id. Ms. Shea Westfall approved her request the next month. Aug. 20, 2015 Mem., ECF No. 19-1 at 247.

         But the Reasonable Accommodation Coordinator later explained to Ms. Weatherspoon that the Department could not actually provide her a larger laptop because of the Department's Information Technology Infrastructure and Operations' rules and guidelines. Sept. 24, 2015 Email, ECF No. 19-1 at 267. Instead, the Department offered her a docking station and a large monitor for her to set up at home. Id. at 268.

         Ms. Weatherspoon took medical leave throughout November and December of 2015. Weatherspoon Rebuttal Affidavit, ECF No. 19-1 at 69. In early February, the IT Department told Ms. Weatherspoon that her docking station and large monitor were ready for her to pick up. Feb. 4, 2016 Email, ECF No. 19-1 at 270. The IT Department asked her to come into the office, so technicians could test the equipment with her. Id. Ms. Weatherspoon cancelled several appointments with the IT Department to pick up the new equipment. Feb. 11, 2016 Email, ECF No. 19-1 at 274. It is unclear when Ms. Weatherspoon eventually picked up the equipment.

         Even with this accommodation, Ms. Weatherspoon had trouble using her computer. The Department of Defense Computer/Electronic Accommodations Program (“CAP”) suggested to Ms. Weatherspoon that a software called ZoomText could help and sent her a link to a trial version. Pl.'s Ex. 2, ECF No. 20-2 at 1. Copying Ms. Shea Westfall on her email, Ms. Weatherspoon told CAP that ZoomText was not helping. Id. Ms. Weatherspoon eventually visited CAP for an in-person needs assessment. Pl.'s Ex. 3, ECF No. 20-3 at 2. After that meeting, CAP recommended a ZoomText Magnifier/Reader 10.1 along with a larger laptop. Id. In April, Ms. Shea Westfall learned that CAP would purchase the ZoomText software for Ms. Weatherspoon. Id. at 1-2. According to Ms. Weatherspoon, she picked up the ZoomText software when she came into the office for the annual holiday party in December. Pl.'s Ex. 6, ECF No. 20-6 at 17.

         During this time, Ms. Shea Westfall found Ms. Weatherspoon's job performance deficient. Report to Duty Mem., ECF No. 19-1 at 252. On March 26, 2016, Ms. Shea Westfall issued Ms. Weatherspoon a formal Report to Duty Memorandum.^[3] Id. In this memorandum, Ms. Shea Westfall explained that Ms. Weatherspoon had not performed key functions of her grant management specialist duties. Id. She also summarized how Ms. Weatherspoon was not in compliance with her current telework agreement. Id. at 252-53. Last, she instructed her to report to work the next week. Id. at 253. She advised Ms. Weatherspoon that if she failed to do so, her absences would be recorded as “absence without leave” unless she provided adequate documentation justifying them. Id. She also warned her that prolonged “absence without leave” status “could result in discipline, up to and including removal from the Federal service.” Id. Ms. Weatherspoon was not in fact disciplined, however. Pl.'s Mem. in Opp. (“Pl.'s Mem.”), ECF No. 20 at 17.

         According to Ms. Weatherspoon, Ms. Shea Westfall issued this Memorandum to retaliate against her for claiming discrimination earlier that month. Id. She cites a March 2, 2016 email in which Ms. Weatherspoon complained that Ms. Shea Westfall had used her disability against her in a performance review. See Pl.'s Ex. 25, ECF No. 20-25 at 1.

         In May, Ms. Weatherspoon asked for 100% telework as an accommodation. June 8, 2016 Mem., ECF No. 19-1 at 257. Ms. Shea Westfall denied that specific request and instead granted a different accommodation: Ms. Weatherspoon could telework two days a week and then request “episodic” telework when her medical condition kept her from commuting. June 14, 2016 Mem., ECF No. 19-1 at 262-63.^[4] The Department has never denied a request by Ms. Weatherspoon for an “episodic” telework day. Weatherspoon Dep. at 41.

         Ms. Weatherspoon has sued, alleging both employment discrimination and retaliation. Compl. ¶ 1. Specifically, she first asserts that the Department “violated the Rehabilitation Act by failing to reasonably and effectively accommodate” her disability. Id. ¶ 19. She also asserts that the Department violated the Rehabilitation Act by denying her “the right to telework based on her complaint of disability discrimination and her request for a larger-screened laptop computer.” Id. ¶ 20.

         II.

         To prevail on a motion for summary judgment, a movant must show 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A factual dispute is material if it could alter the outcome of the suit under the substantive governing law. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material ...