United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
a disability discrimination and retaliation case brought by
an employee of the Washington Metropolitan Area Transit
Authority (“WMATA”). Plaintiff Natasha McIntyre
alleges that she was denied an accommodation for her
disability and that she was retaliated against for engaging
in protected activity related to her disability. Plaintiff
brings this lawsuit against Defendant under the
Rehabilitation Act of 1973. 29 U.S.C. § 794.
the Court is Defendant's  Motion for Summary
Judgment. Defendant claims that it is entitled to summary
judgment on both of Plaintiff's claims. Upon
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court GRANTS
Defendant's motion. First, the Court finds that summary
judgment is appropriate on Plaintiff's Count 1 claim for
failure to accommodate because Plaintiff's requested
accommodation, involving a late work arrival and a change in
work days, was not reasonable and would impose an undue
hardship on Defendant. Second, the Court finds that summary
judgment is appropriate on Plaintiff's Count 3
retaliation claim as Plaintiff has failed to allege any
adverse employment action that is causally connected to a
was hired by Defendant WMATA as a Special Police Officer in
2008. Def.'s Statement of Material Facts, ECF No. 21,
¶ 1. In 2010, Plaintiff was promoted to the rank of
Sergeant, Special Police. Id. at ¶¶ 2-3.
Originally, Plaintiff worked the night shift, but in 2014
Plaintiff selected to work the day shift, which runs from
6:00 a.m. to 2:00 p.m. Id. at ¶ 5. Once on the
day shift, Plaintiff reported to Lieutenant Denise Craig.
Id. at ¶ 10.
parties dispute whether or not Plaintiff selected the day
shift as part of a “bona fide seniority system.”
Defendant argues that it has a seniority system to determine
the shifts and days which sergeants work. The most senior
sergeants pick their shifts first, with the picks continuing
down the line of sergeants according to seniority.
Id. at ¶¶ 6-8. Plaintiff agrees that
“[o]nce a year, the Sergeants choose among themselves
based on their seniority as to who gets what shift.”
Pl.'s Statement of Material Facts, ECF No. 24, ¶ 2.
However, Plaintiff contends that the seniority system is not
“bona fide” as it is not implemented by
management and there are exceptions to the seniority system
for issues like overtime and holiday work. Id. at
has a drug and alcohol testing policy for employees.
Def.'s Statement of Material Facts, ECF No. 21, ¶
11. In February 2016, Plaintiff's drug test revealed the
presence of amphetamines. Id. at ¶ 16. The
presence of amphetamines in Plaintiff's system was caused
by the prescription drug Adderall which had been prescribed
by her doctor to treat her Attention Deficit/Hyperactivity
Disorder (ADHD). Id. at ¶ 18. Defendant found
that Plaintiff had failed to follow the mandatory reporting
procedures for prescription drugs. Id. at ¶ 19.
Plaintiff disputes this finding and argues that she reported
her prescription drug use according to her supervisor's
instruction. Pl.'s Response to Def.'s Statement of
Material Facts, ECF No. 24, ¶ 19. As a result of
Defendant's finding that Plaintiff had failed to report
her prescription drug use in a satisfactory manner, Plaintiff
was placed on a mandatory Employee Assistance Program
enrollment for approximately fifteen days in March 2016.
Def.'s Statement of Material Facts, ECF No. 21,
Defendant's finding that Plaintiff had failed to report
her prescription drug use, in March 2016, Plaintiff contacted
Defendant regarding possible accommodations for her
disability of ADHD. Id. at ¶ 24. Plaintiff met
with Ada Posey, the Acting Chair of Defendant's Employees
with Disabilities Panel. Id. at ¶ 25. In
response to her discussions with Ms. Posey, Plaintiff
submitted a letter from her doctor. As accommodations for
Plaintiff's disability, her doctor recommended: “1)
Approval for prescription drug use-Adderall XR  2) Flex
time- employee choosing time to start and leave work daily,
within limits 3) Short, frequent breaks throughout workday 4)
Advice on breaking down large projects into smaller pieces 5)
Written instructions and email reminders 6) Frequent
performance reviews/regular feedback.” Exhibit 5, ECF
April 7, 2016, the Employees with Disabilities Panel met with
Plaintiff to discuss her request for accommodations. There is
some dispute as to what accommodations Plaintiff requested
pertaining to a change in her work schedule. Plaintiff
contends that she requested an accommodation only “for
the occasional times that her medication had a negative
effect on her sleep.” Pl.'s Statement of Material
Facts, ECF No. 24, ¶ 3. Plaintiff explains that she did
not request a permanent schedule change. Defendant contends
that Plaintiff requested that her start time be changed from
6:00 a.m. to 8:00 a.m. or 9:00 a.m. and that her weekly
scheduled work days be changed from Friday through Tuesday to
Monday through Friday. Def.'s Statement of Material
Facts, ECF No. 21, ¶¶ 33-34.
13, 2016, the Panel issued its decision on Plaintiff's
accommodations request. Defendant offered its “full
support” in accommodating Plaintiff by providing
“1) advice on breaking down large projects into smaller
pieces; 2) written instructions and email reminders; 3)
short, frequent breaks throughout the workday; and 4)
frequent performance reviews/regular feedback.” Exhibit
8, ECF No. 21-8. Defendant indicated that it was already
providing Plaintiff with some of these accommodations and
that it would continue to do so. Id.
Defendant denied Plaintiff's request “to change
[her] start time from 6:00 am to 8:00 am or 9:00 am, and
[her] weekly scheduled work days from Friday through Tuesday
to Monday through Friday.” Id. Defendant
indicated that this would be an unreasonable accommodation.
According to the denial letter “[g]ranting this
accommodation would require [Defendant] to breach the SPO
(Special Police Officer) bona fide seniority system; and it
would require a number of changes in work schedules of other
staff members to compensate for gaps in coverage.”
Id. Moreover, as Plaintiff had been working the day
shift for two years, Defendant “[w]as confident in
[Plaintiff's] capability to meet this current schedule
and further suggested that if [Plaintiff] wished to change
[her] schedule to any of the other standard shift times,
[she] could do so via the ‘picking system' (the
bona fide seniority system…).” Id.
Following Plaintiff's initial denial for a scheduling
accommodation, Plaintiff contacted Ms. Posey regarding an
appeal of the denial. However, in late May 2016,
Plaintiff's request was again denied. Exhibit 5, ECF No.
parties disagree on whether or not Plaintiff's requested
scheduling accommodation was reasonable. The parties agree
that Plaintiff's day shift runs from 6:00 a.m. to 2:00
Statement of Material Facts, ECF No. 21, ¶ 40. In
addition to Plaintiff, there are generally four other
sergeants assigned to the day shift. Id. at ¶
45. The next shift runs from 2:00 p.m. to 10:00 p.m., and the
night shift runs from 10:00 p.m. to 6:00 a.m. Id. at
¶¶ 41-42. The parties also agree that the officers
whom Plaintiff supervises on her day shift report at 6:45
a.m. for their 7:00 shifts. Id. at ¶ 43. Once
the sergeants report to the station in the morning,
approximately 20 officers who are assigned to the 7:00 a.m.
shift will call in by phone. Id. at ¶ 47. At
the beginning of the shift, sergeants are responsible for
roll call, updating officers about any information they need
to be aware of, debriefing previous officers, and providing
assignments for some alternative officers reporting for duty.
Id. at ¶ 48. The parties also agree that the
sergeants are not responsible for preparing only for the
officers whom they supervise. Instead, typically two of the
five sergeants on Plaintiff's shift will perform the
initial administrative duties for all of the officers.
Pl.'s Response to Def.'s Statement of Material Facts,
ECF No. 24, ¶ 49. The remaining three officers may
provide assistance or complete their own work.
addition to denying her request for a scheduling
accommodation, Plaintiff further contends that Defendant
retaliated against her for engaging in protected activities
relating to her disability. Plaintiff's allegations of
retaliation center on her supervisor Lieutenant Craig.
Plaintiff first started working for Lieutenant Craig when she
transferred to the day shift in March 2014. Plaintiff
contends that she was a “target” of Lieutenant
Craig ever since she arrived on the day shift. Def.'s
Statement of Material Facts, ECF No. 21, ¶ 53.
November 2016 and February 2017, Plaintiff filed complaints
with Defendant's internal Equal Employment Opportunity
(“EEO”) office alleging that she was being
retaliated against by Lieutenant Craig and others. Plaintiff
made many allegations concerning perceived unfair treatment
and favoritism towards certain officers. For example,
Plaintiff alleged that Lieutenant Craig publicly criticized
her, called her a “cancer, ” disciplined her for
tardiness, and allowed others to treat her negatively.
Exhibit 6, ECF No. 24-6. And, Plaintiff further alleged that
Lieutenant Craig had attempted to embarrass another officer
by asking him to spell something aloud. Def.'s Statement
of Material Facts, ECF No. 21, ¶¶ 63-64.
on the denial of her requested disability accommodation and
the alleged retaliation, Plaintiff filed a charge with the
Equal Employment Opportunity Commission (“EEOC”)
on May 23, 2017. Exhibit 8, ECF No. 24-8. The EEOC provided
Plaintiff with a right to sue letter on June 13, 2017, and
Plaintiff filed this lawsuit within 90 days on September 12,
parties have completed discovery and were unable to resolve
the matter through court-facilitated mediation. See
Joint Status Report, ECF No. 18. On October 15, 2018,
Defendant filed a Motion for Summary Judgment on
Plaintiff's Rehabilitation Act claims for failure to
accommodate, retaliation, and hostile work environment.
See generally Def.'s Mot., ECF No. 21. In her
opposition, Plaintiff agreed to dismiss her hostile work
environment claim. Pl.'s Opp'n, ECF No. 24, 1.
Accordingly, the only two issues currently before the Court
are Defendant's request for summary judgment on
Plaintiff's claims for failure to accommodate and
judgment is appropriate where “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). The mere existence of some factual
dispute is insufficient on its own to bar summary judgment;
the dispute must pertain to a “material” fact.
Id. Accordingly, “[o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Nor may summary judgment be avoided
based on just any disagreement as to the relevant facts; the
dispute must be “genuine, ” meaning that there
must be sufficient admissible evidence for a reasonable trier
of fact to find for the non-movant. Id.
order to establish that a fact is or cannot be genuinely
disputed, a party must (a) cite to specific parts of the
record-including deposition testimony, documentary evidence,
affidavits or declarations, or other competent evidence-in
support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually
establish the absence or presence of a genuine dispute.
Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without
any factual basis in the record cannot create a genuine
dispute sufficient to survive summary judgment. See
Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of
Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
Moreover, where “a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact, ” the district court may
“consider the fact undisputed for purposes of the
motion.” Fed.R.Civ.P. 56(e).
faced with a motion for summary judgment, the district court
may not make credibility determinations or weigh the
evidence; instead, the evidence must be analyzed in the light
most favorable to the non-movant, with all justifiable
inferences drawn in his favor. Liberty Lobby, 477
U.S. at 255. If material facts are genuinely in dispute, or
undisputed facts are susceptible to divergent yet justifiable
inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end,
the district court's task is to determine “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Liberty
Lobby, 477 U.S. at 251-52. In this regard, the
non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “If the evidence
is merely colorable, or is not significantly probative,
summary judgment may be granted.” Liberty
Lobby, 477 U.S. at 249-50 (internal citations omitted).
recognition of the difficulty in uncovering clear evidence of
discriminatory or retaliatory intent, the district court
should approach summary judgment in an action for employment
discrimination or retaliation with “special
caution.” Aka v. Wash. Hosp. Ctr., 116 F.3d
876, 879-80 (D.C. Cir. 1997), vacated on other
grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en
banc). Be that as it may, the plaintiff is not relieved
of his burden to support his allegations with competent
evidence. Brown v. Mills, 674 F.Supp.2d 182, 188
(D.D.C. 2009). As in any context, where the plaintiff would
bear the burden of proof on a dispositive issue at trial, at
the summary judgment stage he bears the burden of production
to designate specific facts showing that there exists a
genuine dispute requiring trial. Ricci v. DeStefano,
557 U.S. 557, 586 (2009). Otherwise, the plaintiff could
effectively defeat the “central purpose” of the
summary judgment device-namely, “to weed out those
cases insufficiently meritorious to warrant . . .
trial”- simply by way of offering conclusory
allegations, speculation, and argument. Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
Amended Complaint, Plaintiff brings three claims under the
Rehabilitation Act. In Count 1, Plaintiff alleges that
Defendant discriminated against her based on her disability
by wrongfully denying her reasonable accommodation. Am.
Compl., ECF No. 13, ¶¶ 38-52. In Count 2, Plaintiff
claims that she faced a hostile work environment on account
of her disability. Id. at ¶¶ 53-64. And,
in Count 3, Plaintiff alleges that she was retaliated against
for engaging in protected activities related to her
disability. Id. at ¶¶ 65-80.
has voluntarily agreed to dismiss her Count 2 claim for a
hostile work environment. Pl.'s Opp'n, ECF No. 24, 1.
Defendant requests summary judgment on Plaintiff's
remaining claims for failure to accommodate and retaliation.
argues that summary judgment is appropriate on both of
Plaintiff's Rehabilitation Act claims. As to
Plaintiff's failure to accommodate claim, Defendant
contends that summary judgment should be granted because the
statute of limitations has run and because Plaintiff's
requested accommodation was not reasonable and would impose
an undue hardship on Defendant. And, as to Plaintiff's
retaliation claim, Defendant argues that summary judgment is
appropriate because Plaintiff failed to allege any actionable
adverse employment action which is causally connected to a
Court will address each argument in turn. Ultimately, the
Court GRANTS Defendant's Motion for Summary Judgment on
both counts. The Court concludes that Defendant did not
discriminate against Plaintiff by denying her requested
accommodation because that accommodation was unreasonable and
would place and undue hardship on Defendant. Additionally,
the Court finds that Plaintiff has failed to allege that
Defendant retaliated against her by subjecting her to an
adverse employment action causally connected to her protected
Statute of Limitation
Defendant argues that Plaintiff's failure to accommodate
claim under the Rehabilitation Act must be dismissed as
barred by the statute of limitations. The Rehabilitation Act
does not have an express statute of limitations. Accordingly,
the Act must “borrow” one from an analogous state
cause of action. See Spiegler v. D.C., 866 F.2d 461,
463-64 (D.C. Cir. 1989) (explaining that when Congress has
not established a statute of limitations for a federal cause
of action, courts should use the limitations period from an
analogous state statute). The United States Circuit Court for
the District of Columbia Circuit (“D.C. Circuit”)
has not decided on an analogous state cause of action from
which courts should draw a limitations period when analyzing
Rehabilitation Act claims. And, courts have pulled
limitations period from both the District of Columbia Human
Rights Act (“DCHRA”), which has a one-year
limitations period, and District of Columbia personal injury
laws, which have a three-year limitations period. See,
e.g., Adams v. D.C., 740 F.Supp.2d 173, 184 (D.D.C.
2010) (borrowing the District of Columbia's three-year
statute of limitations for personal injury claims when
analyzing a Rehabilitation Act claim); Gordon v.
D.C., 605 F.Supp.2d 239, 245 (D.D.C. 2009) (same);
but see Jaiyeola v. D.C., 40 A.3d 356, 368-69 (D.C.
2012) (holding that the DCHRA is more analogous to the
Rehabilitation Act than the District of Columbia's
personal injury laws and applying the DCHRA's one-year
statute of limitations to a Rehabilitation Act claim).
asks the Court to apply the one-year limitations period from
the DCHRA, and Plaintiff asks the Court to apply the
three-year limitations period from District of Columbia
personal injury laws. The Court need not resolve this issue,
because under ...