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Kirkland v. McAleenan

United States District Court, District of Columbia

December 23, 2019

CHARMAYNE KIRKLAND, Plaintiff,
v.
KEVIN McALEENAN, Acting Secretary of the Department of Homeland Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         Plaintiff Charmayne Kirkland brings this action against the Department of Homeland Security (the “Department”) for allegedly violating the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., Title VII of the Civil Rights of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a, and the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq., by discriminating against her on the basis of race, sex, age, and disabilities; retaliating against her for requesting reasonable accommodations and for her prior Equal Employment Opportunity (“EEO”) activity; and terminating her employment without good cause. After the completion of discovery, Plaintiff filed her third amended complaint. Dkt. 53. Plaintiff then moved for partial summary judgment on “several disability discrimination and failure to accommodate claims, ” Dkt. 57 at 1, and the Department cross-moved for summary judgment, Dkt. 61. After seeking and obtaining four extensions of time to respond to the Department's cross-motion, Plaintiff filed her opposition brief on January 11, 2019, Dkt. 66, only to amend that submission a month later, Dkt. 70. The Department, in turn, sought and obtained an extension of time, Dkt. 74, and did not file its reply brief until May 3, 2019, Dkt. 77. Because briefing on the Department's cross-motion was thus delayed by several months, the Court issued a decision on Plaintiff's motion for partial summary judgment without waiting for the parties to complete briefing on the Department's cross-motion. Dkt. 75. Concluding that the “record reveal[ed] several genuine disputes of material fact, ” the Court denied Plaintiff's motion for partial summary judgment in March 2019. See Kirkland v. Nielsen, No. 13-194, 2019 WL 1428354, at *1 (D.D.C. Mar. 30, 2019) (“Kirkland I”).

         The Court now turns to the Department's cross-motion for summary judgment. Dkt. 61. In that motion, the Department argues: (1) that it complied with the Rehabilitation Act by accommodating Plaintiff, at least to the extent is was required to do so; (2) that it had legitimate, non-discriminatory reasons to terminate Plaintiff's employment and to take the other employment actions that Plaintiff alleges were based on unlawful discrimination or retaliation; (3) that Plaintiff cannot show that any of those rationales were pretextual; and (4) that Plaintiff was not subjected to a hostile work environment. Some of these arguments are persuasive, and others are not. The Court will, accordingly, grant in part and deny in part the Department's cross-motion for summary judgment.

         I. BACKGROUND

         The following facts, except where indicated, are based on evidence either that Plaintiff offered or that the Department offered and that Plaintiff has failed to controvert with her own evidence. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         In 1996, Plaintiff was hired as an industrial hygienist by the Immigration and Naturalization Service (“INS”), which was a component of the Department of Justice. Kirkland I, 2019 WL 1428354, at *1. When Congress abolished the INS in 2003, Plaintiff-along with other former INS employees-was temporarily reassigned to what was then called the Bureau of Immigration and Customs Enforcement in the newly-established Department of Homeland Security. Dkt. 61 at 2 (SUMF ¶ 1); Dkt. 61-1 at 2 (Def. Ex. 1). The Bureau of Immigration and Customs Enforcement is now known as U.S. Immigration and Customs Enforcement or ICE. The next year, Plaintiff was again reassigned, this time to the Bureau of Customs and Border Protection-now known as U.S. Customs and Border Protection or CBP-in the Office of Human Resources, Workforce Effectiveness Division, Employee Support Safety and Health Branch (“Safety Branch”). Dkt. 61 at 2 (SUMF ¶ 2); Dkt. 61-1 at 4 (Def. Ex. 2). For several months after her reassignment, Plaintiff continued to work from an office located at ICE headquarters but was eventually moved to an office at CBP headquarters located in Washington, D.C. Dkt. 61 at 2 (SUMF ¶ 3); Dkt. 61-1 at 6 (Def. Ex. 3). When the Department reassigned Plaintiff from ICE to CBP in January 2004, Gary McMahen, Director of the Safety Branch, became her direct supervisor. See Dkt. 61-1 at 12 (Def. Ex. 4). He served as her first-line supervisor until late March 2005, and then, later, her second-line supervisor. Id.; Dkt. 57-6 at 67 (Pl. Ex. C). Starting in January 2006, Mickey McKeighan served as Plaintiff's first-line supervisor. Id. Unlike Plaintiff, all other CBP industrial hygienists assigned to the Safety Branch worked from an office in Indianapolis, Indiana. See Dkt. 61-1 at 69 (Def. Ex. 7).

         On December 30, 2004, Plaintiff fractured her humerus in a non-work-related accident and, based on that injury, requested approval to telecommute. Dkt. 61-1 at 19-20 (Def. Ex. 4). While being treated for that injury, “her physician advised her that she suffered from carpal tunnel syndrome of the right and left arms.” Dkt. 57-6 at 61 (Pl. Ex. C); Dkt. 61-1 at 12 (Def. Ex. 4). On or around January 28, 2005, Plaintiff provided CBP with a “verification of treatment” form from her physician, stating that she had carpal tunnel syndrome (“bilateral, moderate to severe”) and recommending that the Department provide her with “voice-activated software” and an “ergonomically correct workstation.” Dkt. 57-6 at 29 (Pl. Ex. C); see also Dkt. 61-1 at 12, 14. The form indicated that Plaintiff's injury was work-related and that she had received medical treatment but did not describe the “physical effects or the projected duration” of the condition. Dkt. 61-1 at 12 (Def. Ex. 4); see also Dkt. 57-6 at 29 (Pl. Ex. C). On that same day, Plaintiff also provided CBP with a second “verification of treatment” form, dated February 2, 2005, which confirmed that she had fractured her right humerus in a non-work-related accident, Dkt. 57-6 at 30 (Pl. Ex. C), and which recommended that she be allowed to work from home until February 19, 2005, Dkt. 61-1 at 144 (Def. Ex. 13). Although the parties disagree about certain details, they agree that McMahen allowed Plaintiff to telework on a day-to-day basis during at least a portion of this timeframe. Dkt. 61 at 4 (SUMF ¶ 16); Dkt. 70 at 18 (Response to SUMF ¶ 16). On February 15, 2005, McMahen discontinued Plaintiff's telework arrangement and directed her to “either report to work or take leave.” Dkt. 61-1 at 20-21 (Def. Ex. 4). That same day, Plaintiff contacted CBP's EEO Office about McMahen's action, but she indicated that she “did not wish to seek EEO counseling” at that time. Dkt. 57-6 at 60-61 (Pl. Ex. C).

         According to Plaintiff, during a March 9, 2005 telephone call, she “emphatically ask[ed] for the voice-activated software [her] neurologist recommended, ” Dkt. 57-6 at 25 (Pl. Ex. C), and McMahen “assured” her that CBP would provide her with the “software[] and the ergonomic workstation” that she had requested, id. at 15. Plaintiff received the voice-activated software on or about July 1, 2005, see Dkt. 61-2 at 2 (Def. Ex. 18); Dkt. 61 at 3 (SUMF ¶ 10); Dkt. 70 at 16- 17 (Response to SUMF ¶ 10), but she did not receive an “ergonomic chair” or operable telephone headset at that time, see Dkt. 61-1 at 114, 116, 131-32 (Def. Ex. 10, 12). Moreover, although Plaintiff's training on how to use the software “began around July 1, 2005, ” id., and, although she received some subsequent training, Dkt. 61-1 at 116 (Def. Ex. 10), the training was never completed, see Id. at 239 (Def. Ex. 17) (noting, on May 25, 2007, that Kirkland “still ha[d] 4 hours of [voice activated software] training time left from 2005, ” which was incomplete because “she went out on leave”). With respect to Plaintiff's request for an ergonomic workstation, the Department conducted an initial ergonomic evaluation in May 2005, and a second ergonomic assessment in December 2005. See Dkt. 61-1 at 84 (Def. Ex. 8).

         At the same time that Plaintiff was seeking accommodations for her carpal tunnel syndrome, the Safety Branch began the process of filling its position of Deputy Director, which was vacant. Prior to filling the position on a permanent basis, the Branch provided the opportunity for employees at the GS-13 or GS-14 grade level to serve as the acting Deputy Director for 30-day intervals. Dkt. 61-1 at 25 (Def. Ex. 4); Dkt. 61-2 at 5 (Def. Ex. 19). That opportunity presumably provided those applying to fill the position on a permanent basis with an advantage, since they would have relevant experience and could treat the temporary position as an audition for the permanent role. In April 2005, Kirkland applied for the “opportunity” to “showcase [her] abilities during one of the 30-day . . . intervals.” Dkt. 61-2 at 5 (Def. Ex. 19). McMahen, however, denied the request, asserting that the acting Deputy Director position was available only to Indianapolis-based employees and that “[t]ravel expenses [would] not be authorized for employees outside the Indianapolis commuting area.” Dkt. 61-2 at 5 (Def. Ex. 19). McKeighan, a fellow CBP industrial hygienist based in Indianapolis, was among those granted the opportunity to serve as the acting Deputy Director, and he was eventually appointed the permanent Deputy Director on January 22, 2006. Dkt. 61-1 at 77 (Def. Ex. 8).

         On July 28, 2005, McKeighan, the then-acting Deputy Director, sent Plaintiff a letter “requesting more detailed information from her doctor regarding her medical” condition “to assist management in making an informed decision regarding whether or not [she] had a disability” requiring “a reasonable accommodation.” Dkt. 57-6 at 79 (Pl. Ex. C); see also Dkt. 57-6 at 111-12. The CBP EEO Officer followed up in August 2005 by sending Plaintiff a memorandum seeking her doctor's written certification whether she was “able to perform the duties of [her] position and otherwise to meet its requirements.” Dkt. 57-6 at 118-21 (Pl. Ex. C). In late September 2005, Plaintiff responded and provided CBP with a report, referred to as the EMG/Nerve Conducted Study (“EMG/NC Study”), and a letter from her neurologist, Dr. Daniel Glor. Id. at 122-27 (Pl. Ex. C). According to the EMG/NC Study, Plaintiff's results were “indicative of moderate carpal tunnel syndrome bilaterally, worse on the left, ” and her condition had “improved” since January 2005. Id. at 124 (Pl Ex. C). The study recommended that Plaintiff “be given an ergonomically-correct workstation and be allowed to use voice-activated software.” Id. The Glor letter affirmed that Plaintiff suffered from “carpal tunnel syndrome bilaterally.” Dkt. 57-6 at 126 (Pl. Ex. C). In response to specific questions posed by CBP, Dr. Glor opined that Plaintiff should “have an ergonomically correct workstation and [should] be allowed to use voice activated software in order to reduce the amount of keying she performs.” Id. He further opined that “[t]he only major life activity from the list provided (walking, talking, eating, sleeping) that [Plaintiff's] carpal tunnel syndrome affects is sleeping, as sometimes the pain, numbness and tingling from the carpal tunnel syndrome can wake her from sleep.” Id. He described the extent of Plaintiff's impairment as follows: her “carpal tunnel syndrome substantially limits her ability to work[] and may interfere with her sleep in a mild degree.” Id.

         McKeighan, who was serving as the acting Deputy Director at that time, responded to Plaintiff's request for a reasonable accommodation on November 7, 2005. Dkt. 61-2 at 2-3 (Def. Ex. 18). He started by explaining that CBP had, as a matter of “good faith, ” provided Plaintiff with voice-activated software and an ergonomic workstation as an accommodation “to assist [her] in performing the essential functions of [her] position.” Id. at 2. But before CBP could decide whether Plaintiff was “entitled to an accommodation under the Rehabilitation Act of 1973, ” McKeighan continued, it had sought additional “medi[c]al information about [her] impairment.” Id. McKeighan informed Plaintiff that, having received and reviewed that information, CBP had concluded that she did not “have an impairment that substantially limits a major life activity, ” as required to qualify for an accommodation under the Rehabilitation Act. Id.

         Plaintiff, in turn, sought reconsideration and submitted “supplemental information from [her] physician.” Dkt. 57-6 at 134-36 (Pl. Ex. C). In support of her request for reconsideration, Dr. Glor further opined that Plaintiff had “debilitating pain, numbness and tingling in her hands due to prolonged repetitive motions related to extensive keyboarding;” that “[t]he pain interrupts her sleep;” that “[t]he symptoms interfere with her ability to use a telephone, read, reach for objects, and do other hand/finger movements;” and that “the ability to use her hands, which is a major life function, is impaired.” Id. at 135. Based on Plaintiff's condition, Dr. Glor recommended that she “do very limited keyboard activity;” recommended that she “accomplish her work through the use of voice activated software with a headset” and that she have “an adjustable chair;” and advised that she “cannot lift more than 5 pounds from no less then 24 inches from the floor, and no higher than shoulder height to avoid excessive strain to her arms, wrists, and hands.” Id.

         McMahen responded to Plaintiff's request for reconsideration on December 16, 2005 and concluded that she had failed to demonstrate that her carpal tunnel syndrome “substantially limit[ed] a major life activity.” Dkt. 57-6 at 137 (Pl. Ex. C). He confirmed, however, that CBP had provided Plaintiff with “voice-activated software, an ergonomic chair and a modifiable workstation” and that it would continue to offer Plaintiff training on the use of the voice-activated software. Id. But McMahen informed Plaintiff, “no further accommodation is required.” Id.

         On February 22, 2006, CBP informed Plaintiff by letter that the Department had decided to “reassign [her] from [her] current position” as an industrial hygienist in “Washington, D.C. to the position of [i]ndustrial [h]ygienist . . . [in] Indianapolis, Indiana.” Dkt. 61-2 at 15 (Def. Ex. 22). The letter explained that, “if you decline this reassignment, we will have no choice but to initiate action proposing your removal from federal service on the basis of your failure to accept this directed reassignment.” Id. Although she asserts that she “was not given a meaningful choice, ” Dkt. 70 at 21 (Response to SUMF ¶ 29), Plaintiff does not dispute that she “accepted the direct reassignment . . . to Indianapolis” and that she “was given a reporting date of April 17, 2006, ” Dkt. 61 at 5 (SUMF ¶ 29); see also Dkt. 61-2 at 18 (Def. Ex. 22). Plaintiff's “voice-activated software and accessories[] were shipped to Indianapolis, ” but she “never reported for duty in Indianapolis.” Dkt. 61 at 5 (SUMF ¶ 30); Dkt. 70 at 22 (Response to SUMF ¶ 30). Instead, on April 26, 2006-a little over a week after she was due to report-“Plaintiff requested that, as an accommodation, she be allowed to perform the [industrial hygienist] position in Washington, D.C., or, in the alternative, ” that she be allowed “to work a full-time telework schedule.” Dkt. 61 at 5 (SUMF ¶ 31); Dkt. 70 at 22 (Response to SUMF ¶ 31).

         According to Plaintiff, this accommodation was necessary because she was suffering from “degenerative joint disease and plantar fasciitis, ” and these conditions “severely restricted [her] ability to walk more than one quarter of a mile, ascend or descend more than three ten-inch steps, or climb or descend ladders, hills or slopes without experiencing physical pain or risking injury.” Dkt. 57-1 at 3 (Pl.'s SUMF ¶¶ 7-8). As Plaintiff explained on April 26, 2006, the Safety Branch's office in Indianapolis was “not accessible to individuals, ” like her, “with walking disabilities using public transportation, making it effectively impossible for [her] to report to work.” Dkt. 57-5 at 26 (Pl. Ex. B). Plaintiff asserts that the bus stop was located “across a busy interstate highway” from the Safety Branch's office, and, “[i]n the absence of sidewalks or walkways, ” she “would have to somehow traverse across three entrances to [the] highway” and a street “without the benefit of traffic lights.” Dkt. 57-1 at 5-6 (Pl.'s SUMF ¶¶ 23-24). The walking distance from the bus stop to the office, moreover, was 0.8 miles. Id. at 6 (Pl.'s SUMF ¶ 25). The CBP EEO manager received a medical assessment from Plaintiff's doctors on June 9, 2006.[2] Dkt. 61-2 at 25 (Def. Ex. 24). An October 12, 2006 letter from her doctor confirmed that “[s]he is virtually unable to balance and walk without the use of a mobility aid such as a cane or a walker;” that, “even with the use of mobility aides, her ability to walk is impaired by at least 70%;” that she cannot “stand for more than 30 seconds without assistance;” and that “[s]he is unable to walk more than 100 yards, and she should not ascend or descend more than three ten-inch steps.” Dkt. 57-5 at 27 (Pl. Ex. B). CBP granted Plaintiff a temporary accommodation of leave without pay while the agency considered her request for a permanent accommodation. Dkt. 61-2 at 25 (Def. Ex. 24).

         Although it was Plaintiff's request for telework accommodation that precipitated the agency's assessment whether a reasonable accommodation was possible, the Department ultimately concluded that, regardless of where Plaintiff was located, she was “not qualified to perform the essential functions of the [i]ndustrial [h]ygienist position[, ] with or without an accommodation.” Dkt. 61-2 at 24-29 (Def. Ex. 24). On November 8, 2006, in a letter signed by McKeighan, the agency first concluded that Plaintiff had “a physical impairment that substantially limit[ed] [her] ability to perform the major life activit[ies] of walking, standing, climbing, sitting and lifting.” Id. at 28. It further concluded that “no reasonable accommodation [was] available that would allow [her] to perform the essential functions of [her] Industrial Hygienist (GS 0690-13) position.” Id. The letter explained:

Your responsibilities as an Industrial Hygienist require[] you to be able to evaluate CBP, ICE and [other] work environments to determine existing or potential health risks. The position description for the Industrial Hygienist [position] requires the incumbent to perform the full range of duties which include conducting environmental health and safety surveys inspections and programs that include asbestos removal, abatement and operation and maintenance programs; radon testing and remediation; indoor air quality testing and remediation; lead in water testing; hazardous materials handling; ergonomics; tuberculosis; blood borne pathogens; confined space entry; and the Hazard Communication Program. The position also requires the incumbent to conduct these surveys and inspections at facilities such as laboratories, office buildings, Border Patrol checkpoints, border stations, warehouse[s], detention and removal facilities, aircraft and marine support facilities, inspection facilities at international airports, maintenance shops, radar and communication facilities, and firing ranges. The position is not sedentary in nature and requires frequent inspections and surveys which require moderate physical exertion, including walking, standing, bending, climbing and carrying many items of equipment used in sampling. In summary, your walking, standing, climbing, sitting and lifting restrictions preclude you from performing the essential functions of your position, either with or without reasonable accommodation.

Id. (emphasis added). Finally, the letter concluded that “the [a]gency's only option to reasonably accommodate [Plaintiff's] disability [was] to reassign [her] to a vacant-funded position” and that “the Office of Human Resources Management” would need to “assess [her] qualifications and [to] conduct a job search of vacant positions.” Id.

         On February 1, 2007, Plaintiff filed a new EEO complaint, alleging that CBP had discriminated against her based on her race, sex, age, physical disability, and also asserting a retaliation claim. Dkt. 61-3 at 259 (Def. Ex. 54); Dkt. 61 at 9 (SUMF ¶ 74). Two weeks later, on February 16, 2007, the Department offered Plaintiff a position as a Management Program Specialist (“MPS”), which she accepted on February 22, 2007. Dkt. 61 at 7 (SUMF ¶¶ 49-50). In the MPS position, Plaintiff's principal assignment was to administer CBP's webTELE system (the agency's automated telephone directory). See Dkt. 61-3 at 15-16 (Def. Ex. 39); see also Dkt. 61 at 8 (SUMF ¶ 62); but see Dkt. 70 at 26 (Response to SUMF ¶ 62) (objecting that Plaintiff was also “expected to carry files of paper weighing up to and above five pounds”).

         Soon after starting at the new MPS position, Plaintiff asserted that her commute to the office was beyond her medical limitations, and she requested permission to work from home. Dkt. 61 at 7 (SUMF Dkt. ¶ 52); Dkt. 70 at 23 (Response to SUMF ¶ 52); 61-3 at 19-20 (Def. Ex. 39). Her new supervisor, Jennifer Koh, denied that request on the ground that Plaintiff had just started in the position and needed training and supervision, but she indicated that she would reconsider the request in the future, after Plaintiff had “established [a] baseline on her performance or work delivered to measure her work.” Id. at 20 (Def. Ex. 39); see also Dkt. 61 at 7 (SUMF ¶ 53). CBP did, however, deliver Plaintiff's voice-activated software, ergonomic keyboard, and footrest to her new MPS workstation. Dkt. 61-3 at 23 (Def. Ex. 40); Dkt. 61 at 7 (SUMF ¶ 55). On April 17, 2007, Plaintiff amended her EEO complaint. Dkt. 61-3 at 259 (Def. Ex. 54). One month later, CBP once again began providing Plaintiff with training on the use of her voice-activated software, Dkt. 61-1 at 272 (Def. Ex. 17), although the parties disagree about the extent and efficacy of that training, see Dkt. 61 at 8 (SUMF ¶ 61); Dkt. 70 at 25-26 (Response to SUMF ¶ 61). Plaintiff, for her part, contends that none of the training was instructive on how to use the software with the webTELE system, which was her primary responsibility. Dkt. 70 at 25-26 (Response to SUMF ¶ 61).

         On or about March 19, 2007, Koh assigned Plaintiff responsibility for developing a new user guide for the webTELE system. Dkt. 61-3 at 51 (Def. Ex. 41). When Koh followed up about the assignment over two months later, Plaintiff provided Koh with a single page document that contained handwritten bullet points. Id. at 39 (Def. Ex. 41). Koh provided Plaintiff with further instructions and a new deadline, but Plaintiff did not provide any additional work product for the assignment. Id. at 88 (Def. Ex. 41); Dkt. 61 at 9 (SUMF ¶ 66); Dkt. 70 at 26 (Response to SUMF ¶ 66). On June 11, 2007, Plaintiff sent Koh an email reiterating that she was suffering from “severe bilateral carpal tunnel syndrome;” that her neurologist had “advised that [she] not perform any writing/keyboarding[] until [she] [was] provided with voice recognition software, training on its use, and an ergonomic workstation;” and that, “irrespective of [her] not having completed training or having received further facilitation on the use of the” voice activated software, Koh and others unreasonably expected that she “complete each and every assignment” Koh had given her. Dkt. 61-3 at 152 (Def. Ex. 45); see also Dkt. 61 at 9 (SUMF ¶ 68). In light of her condition, Plaintiff refused to engage in any keyboarding to perform her duties. See Dkt. 61-3 at 179-80; Dkt. 61 at 9 (SUMF ¶ 68); Dkt. 70 at 26 (Response to SUMF ¶ 68).

         Eventually, CBP analyzed Plaintiff's government-issued computer and email account, and the agency concluded that “she was able to send at least 500 typed emails” and to “modify numerous documents on her government[-]provided computer account” during the same period that Plaintiff claimed that she was unable to perform any keyboarding in the performance of her duties. Dkt. 61 at 9 (SUMF ¶ 70). The Department has submitted spreadsheets and screenshots identifying emails that Plaintiff allegedly sent, or documents that she allegedly modified, Dkt. 61-3 at 122-48, 197-202, but Plaintiff objects to this evidence on the grounds that the Department has not submitted the emails themselves and has not authenticated the spreadsheets, Dkt. 70 at 27 (Response to SUMF ¶ 70). Although Plaintiff disputes the charges, id. (Response to SUMF ¶ 71), all agree that CBP proposed Plaintiff's removal on April 29, 2008, on the asserted grounds (1) that she “failed to fulfill the responsibilities of [her] position” and (2) that “[t]he statements [that she] made to management regarding [her] physical abilities were misleading and less than candid, ” Dkt. 61-3 at 204-05 (Def. Ex. 47); see also Dkt. 61 at 9 (SUMF ¶ 71). On September 5, 2008, Plaintiff was removed from federal service. Dkt. 61 at 9 (SUMF ¶ 72). The official who made the removal decision “determined that [Plaintiff] methodically resisted working, claim[ed] a physical limitation prevented her from performing her duties[, ] [yet] simultaneously us[ed] the same abilities for other matters.” Id.

         Plaintiff filed the instant suit in 2013, alleging race, gender, disability, and age discrimination claims against the Department, see Dkt. 1 (Compl.), and, following discovery, she filed her third amended complaint in April 2018. See Dkt. 53 (Third Am. Compl.). In May 2018, Plaintiff sought partial summary judgment on her claims of disability discrimination only, and the Court denied that motion. See Kirkland I, 2019 WL 1428354, at *1. The Department's cross-motion for summary judgment, Dkt. 61, is now before the Court.

         II. LEGAL STANDARD

         As the movant, the Department bears the burden of showing “that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895-96 (D.C. Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248; see also Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . .” Fed.R.Civ.P. 56(c)(1)(A).

         The party seeking summary judgment “bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). In considering a motion for summary judgment, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. Pepco, 447 F.3d 843, 850 (D.C. Cir. 2006). The non-movant's opposition, however, must consist of more than allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant must provide evidence that would permit a reasonable jury to find in its favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). If that evidence is “merely colorable” or “not significantly probative, ” summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50.

         III. ANALYSIS

         Plaintiff's claims are sweeping but fall into five general categories: failure to accommodate, disparate treatment, retaliation, hostile work environment, and wrongful removal. Dkt. 53. The Department's motion for summary judgment, in turn, is almost as sweeping and addresses each of these categories, except Plaintiff's wrongful removal claims under the Civil Service Reform Act (“CSRA”), 5 U.S.C. § 1101 et seq. Because the Department's motion seeks summary judgment “on all of Plaintiff's claims, ” Dkt. 61 at 1, but says nothing about her claims under the CSRA, the Court will deny the motion with respect to Counts XV and XVI of Plaintiff's third amended complaint.[3] The Court addresses Plaintiff's remaining claims below.

         A. Failure to Accommodate Claims

         In Counts I, II, VII, VIII, IX, X, XI, XII, XIII, and XIV of the third amended complaint, Plaintiff alleges that the Department failed to accommodate her disabilities and, accordingly, violated the Rehabilitation Act, 29 U.S.C. § 791 et seq. Dkt. 53 at 28-35, 52-65 (Third Am. Compl. ¶¶ 176-224, 343-405). The Rehabilitation Act prohibits “the federal government from discriminating against employees on the basis of disability” and, among other things, establishes a cause of action against any federal agency that fails to grant a request for a reasonable accommodation. Matos v. Devos, 317 F.Supp.3d 489, 496 (D.D.C. 2018) (citing 29 U.S.C. § 794). In evaluating whether an agency “unlawfully denied an accommodation, ” courts must “employ the standards of the Americans with Disabilities Act of 1990 [ADA], 42 U.S.C. § 12101 et seq.” Solomon v. Vilsack, 763 F.3d 1, 5 (D.C. Cir. 2014); see also 29 U.S.C. § 791(f). This means that, to fend off a properly supported motion for summary judgment, a plaintiff must “come forward with sufficient evidence to allow a reasonable jury to conclude that (i) she was disabled within the meaning of the Rehabilitation Act; (ii) her employer had notice of her disability . . .; (iii) she was able to perform the essential functions of her job with or without reasonable accommodation . . .; and (iv) her employer denied her request for a reasonable accommodation of that disability.” Solomon, 763 F.3d at 9 (internal citations omitted).

         Plaintiff contends that the Department failed to accommodate three distinct sets of impairments: (1) her degenerative joint disease, degenerative osteoarthritis, and plantar fasciitis; (2) her carpal tunnel syndrome; and (3) her fractured right humerus. The first set of impairments impeded her ability to walk and was a basis for the agency's determination that she was physically incapable of performing the essential functions of the industrial hygienist position. Dkt. 61-2 at 24-26 (Def. Ex. 24). As to that disability, the Department moves for summary judgment on the grounds that it lawfully concluded that Plaintiff could not perform the essential functions of the industrial hygienist position, with or without reasonable accommodations. Dkt. 61 at 33. The second asserted disability, her carpal tunnel syndrome, impeded Plaintiff's ability to type, use the telephone, lift objects weighing more than five pounds from below twenty-four inches or above shoulder height, and to engage in other, similar activity. Dkt. 57-6 at 135-36 (Pl. Ex. C.) As to that disability, the Department argues that it was not legally required to adopt any accommodations but that, in any event, it did reasonably accommodate her condition. Dkt. 61 at 18. Finally, Plaintiff's third asserted disability, her broken humerus, prevented her from driving and limited her mobility. Dkt. 61-1 at 143-44 (Def. Ex. 13). It did so, however, only for a limited time, and thus, according to the Department, did not fall within the coverage of the Rehabilitation Act. Dkt. 61 at 27. Because the analysis as to each set of disabilities differs, the Court will take each in turn.

         1. Degenerative Joint Disease, Degenerative Osteoarthritis, and Plantar Fasciitis

         In Counts VII and VIII of the third amended complaint, Plaintiff alleges that the Department failed to accommodate her degenerative joint disease, degenerative osteoarthritis, and plantar fasciitis, conditions she was diagnosed with in 2004. Dkt. 53 at 52-57 (Am. Comp. ¶¶ 343-71). Although the crux of these claims arise from the Department's eventual decision to disqualify her from the industrial hygienist position, that decision was precipitated by CBP's decision to reassign Plaintiff from her position as an industrial hygienist in Washington, D.C. to a position as an industrial hygienist in Indianapolis, Indiana. See Dkt. 61-2 at 15 (Def. Ex. 22). Plaintiff contends that the reassignment posed an insurmountable hurdle for her: After reviewing her options for commuting to work in Indianapolis, Plaintiff discovered that the closest bus stop was located across a busy highway and almost a mile from the Safety Branch's Indianapolis office. As a result, according to Plaintiff, the office was inaccessible to those who, like her, have difficulty walking. See Dkt. 57-5 at 26 (Pl. Ex. B). A letter from Plaintiff's doctor, moreover, confirmed that she was suffering from “a progressively degenerative arthritis and plantar fasciitis” and other conditions, which prevented her from walking “more than 100 yards.” Dkt. Id. at 27 (Pl. Ex. B). Plaintiff, accordingly, requested reassignment back to Washington, D.C. or a full-time telework schedule as an accommodation for her disability. Dkt. 61-2 at 22 (Def. Ex. 23).

         Rather than grant either request, the Department determined that Plaintiff's asserted disability precluded her from performing the essential functions of the industrial hygienist position-with or without reasonable accommodations, from any work station-and it accordingly initiated a process to find a vacant position to which to reassign her. Dkt. 61-2 at 27-29 (Def. Ex. 24). That process took several months to complete, and, during that interval, Plaintiff was not paid. See Id. at 29 (Def. Ex. 24) (noting that plaintiff was placed on “LWOP”- i.e., leave without pay); id. at 76 (Def. Ex. 32). In Plaintiff's view, the Department's actions violated the Rehabilitation Act in two respects: First, the agency should have allowed her to remain in her position as an industrial hygienist, with appropriate accommodations, id. at 52-57 (Third Am. Compl. ¶¶ 343-71), and, second, it should have more promptly placed her “in a vacant-funded position, ” id. at 57-58 (Third Am. Compl. ¶¶ 372-74).[4]

         For purposes of these claims, the Department does not dispute that Plaintiff was disabled within the meaning of the Rehabilitation Act and that it had notice of her disability. See Dkt. 61 at 18. Rather, the Department's motion-and CBP's determination-focus solely on their view that Plaintiff was so severely disabled that she could not perform the “essential functions” of the industrial hygienist position, even with reasonable accommodation. See Id. at 31; 61-2 at 24-29 (Def. Ex. 24). Although neither the Rehabilitation Act nor the ADA defines the phrase “essential functions, ” the ADA-and, by cross-reference, the Rehabilitation Act-provides that “consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8); 29 U.S.C. § 791(f). EEOC regulations define “essential functions” as “the fundamental job duties of the employment position, ” as distinct from “the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1); see also Adams v. District of Columbia, 50 F.Supp.3d 47, 54 (D.D.C. 2014); Kalekiristos v. CTF Hotel Mgmt. Corp., 958 F.Supp. 641, 660 (D.D.C. 1997). In addition to the “[w]ritten job description prepared” before the job was advertised, the Court may consider “[t]he employer's judgment as to which functions are essential, ” “[t]he amount of time spent on the job performing the function, ” the “terms of a collective bargaining agreement, ” “[t]he consequences of not requiring the incumbent to perform the function, ” and the “work experience of past incumbents in the job” and of “current . . . incumbents in similar jobs.” 29 C.F.R. § 1630.2(n)(3). Physical presence is not invariably an essential function but, rather, requires a fact-intensive inquiry. See Solomon, 763 F.3d at 10.

         “Generally, the question of what constitutes an essential function of a job is a factual issue to be determined by a jury, ” Hancock v. Wash. Hosp. Ctr., 13 F.Supp.3d 1, 5 (D.D.C. 2014); see also Baker v. Potter, 294 F.Supp.2d 33, 44 (D.D.C. 2003), and this case fits neatly within that paradigm. According to the Department, the “essential function[s] of the [industrial hygienist] position” included conducting “health and safety surveys and inspections” at “facilities such as laboratories, office buildings, [and] Border Patrol checkpoints . . . .” Dkt. 61 at 5 (SUMF ¶ 34). The need to conduct these inspections, in the Department's view, means that the industrial hygienist “position is not sedentary” and, instead, requires “moderate physical exertion, including walking, standing, bending, climbing and carrying many items of equipment used in sampling.” Id. at 5-6 (SUMF ¶ 35). In support of this characterization, the Department offers written job descriptions from 1996 and 2005, which list these physical demands, Dkt. 61-1 at 55-60 (1996 job description); Dkt. 44-3 at 155-59 (2005 job description), and a copy of Plaintiff's resume, which includes “conducting studies, inspections and surveys” among the duties she performed as an industrial hygienist, Dkt. 61-2 at 51 (Def. Ex. 28).

         Plaintiff disputes the Department's characterization of the physical demands of the industrial hygienist position. She claims that “[w]alking, standing, bending, climbing, carrying equipment and other forms of moderate physical exertion were never essential functions” of the position. Dkt. 70 at 22 (Response to SUMF ¶ 34). In support of this contention, Plaintiff relies on the deposition of James Britt, a fellow CBP industrial hygienist, who testified that activities “requiring mild to moderate physical exertion, ” such as “carrying equipment” or “collecting samples, ” was “an exceptional thing.” Dkt. 44-8 at 12 (Pl.'s Ex. H). Britt further testified that the CBP industrial hygienists “didn't even have the equipment to go out and do sampling and stuff, ” id., and that “for the most part, ” when “people are out in the field carrying equipment, walking, standing, lifting, ” the work was “performed by Federal Occupational Health” employees, id. at 11. Plaintiff also notes that, when she accepted the industrial hygienist position at the INS in 1996, the position description characterized the “physical demands” of the job as “primarily sedentary in nature” and that, only later, did CBP amend the position description (erroneously, in her view) to refer to “moderate physical exertion.” Dkt. 57-1 at 4 (Pl.'s SUMF ¶ 14); Dkt. 44-3 at 151. The 1996 position description, to be sure, also states that an industrial hygienist “may occasionally conduct field surveys requiring a moderate degree of physical activity.” Dkt. 44-3 at 151. But, the position description-and, more importantly, Britt's testimony-show that field inspections and surveys were, at most, “marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1).

         Plaintiff's evidence, like the Department's, is probative of whether “moderate physical exertion, including walking, standing, bending, climbing and carrying . . . equipment used in sampling, ” Dkt. 61 at 5-6 (SUMF ¶ 35), was, in fact, an essential function of the industrial hygienist position. The parties' conflicting accounts create a genuine dispute of material fact, and resolution of that dispute is a question for the factfinder at trial and not for the Court at the summary judgment stage of the proceeding. See Baker, 294 F.Supp.2d at 44; Hancock, 13 F.Supp.3d at 5. The Court will, accordingly, deny the Department's motion for summary judgment with respect to Counts VII and VIII.

         2. Carpal Tunnel Syndrome

         Plaintiff alleges that CBP failed to accommodate her carpal tunnel syndrome in multiple respects. CBP failed, according to Plaintiff, (1) promptly to provide her with voice-assisted software; (2) promptly to provide her with training on use of the software and to complete that training; (3) promptly to provide an ergonomic workstation; (4) to provide her with a typist to take dictation; (5) to provide her with equipment permitting her to switch her headset from word processing to the telephone; or (6) to assist her in unpacking her boxes after she moved offices. See Dkt. 57 at 1; see also Dkt. 53 at 32, 58, 61-63. In the Department's view, each of these claims is deficient for two reasons-first, because Plaintiff has failed to offer evidence that would permit a reasonable jury to find that her carpal tunnel syndrome constituted a disability under the Rehabilitation Act (or that her employer was on notice of that disability), and, second, because CBP, in any event, reasonably accommodated her impairment. In Kirkland I, the Court reserved the question whether Plaintiff's carpal tunnel syndrome constituted a disability for purposes of the Rehabilitation Act. 2019 WL 1428354, at *4 n.2. The Court now turns to that question.

         All of the events relevant to this action occurred on or before September 5, 2008. Dkt. 53 at 28 (Third Am. Compl. ¶ 175). Three weeks after that date, Congress enacted the ADA Amendments Act of 2008, Pub. L. 110-325, 122 Stat. 3553 (2008). That sequence is pivotal because the ADA Amendments Act changed the law in material respects, but the Act did not take effect until January 1, 2009, Pub. L. 110-325, § 8, 122 Stat. 3553, 3559 (2008), and it applies only prospectively, see Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936, 940-42 (D.C. Cir. 2009). Prior to enactment of the ADA Amendments Act, the construction of the phrase “qualified individual with a disability” in the ADA-and, by implication, for purposes of the Rehabilitation Act-was controlled by the Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). That standard is dispositive for present purposes.

         Prior to enactment of the ADA Amendments Act, the ADA defined “disability, ” in relevant respects, as “‘a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” 42 U.S.C. § 12102(1)(A) (2008). In Williams, the Supreme Court construed this statutory text in light of the regulations interpreting the Rehabilitation Act and, to a lesser extent, the EEOC regulations interpreting the ADA. 534 U.S. at 193-94. The Court focused on two statutory terms-the requirements that the impairment at issue “substantially” limit the “major” life activities of the individual. Id. at 196-97. Those terms, in the Court's view, imposed “a demanding standard for qualifying as disabled.” Id. at 197. The term “substantially” excluded “impairments that interfere[d] in only a minor way with the performance”-as relevant there and here-“of manual tasks, ” and the term “major” limited the meaning of “disability” to impairments that interfered with “those activities that are of central importance to daily life, ” such as “walking, seeing, and hearing” and “manual tasks” of similar centrality “to daily life.” Id. In ...


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