REGGIE B. WALTON, District Judge.
This case arises from claims brought pursuant to the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794a (2006), and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 (2006). Second Amended Complaint ("2d Am. Compl.") ¶ 4. The plaintiff asserts that the defendant discriminated against him based on his disability, race, and sex. Id. ¶ 1. Currently before the Court is the Defendant's Motion to Dismiss, or in the Alternative, Defendant's Renewed Motion for Summary Judgment ("Def.'s Mot."). For the reasons explained below, the Court will grant the defendant's motion, and grant summary judgment in favor of the defendant on all of the plaintiff's claims.
Drawing all justifiable inferences in favor of the plaintiff, as the Court must, the factual allegations underlying this lawsuit are as follows. In 1997 the plaintiff suffered a stroke and consequently developed several physical impairments, including peripheral vascular disease, diabetes, stenosis, lumbar arthritis, and emotional difficulties. 2d Am. Compl. ¶ 9. These conditions affected the plaintiff's ability to write, speak, see, walk, and concentrate. Id. Nonetheless, the plaintiff, an attorney who had held various legal positions in private practice and the government, obtained employment with the Department of Veterans Affairs ("VA") in January 2006, where he worked until April 1, 2010. Id. ¶ 7. The plaintiff began his employment at the VA as a GS-11-level employee, and had advanced to the GS-13 level when he retired from the VA. Id. During his time at the VA, the plaintiff worked for four different judges on the Board of Veterans Appeals. Pl.'s 11/22/10 Opp'n, App. at 26.
As an associate attorney at the VA, the plaintiff was required to meet a quota, or "production requirement," of 156 credits (i.e., cases) per year. See Pl.'s 11/22/10 Opp'n, Appendix ("App.") at 14-15. The plaintiff asserts that the VA "had a policy going back a number of years that specifically permitted a downward departure from the number of decisions a staff attorney had to produce if that lawyer had a serious medical condition." 2d Am. Compl. ¶ 10. The plaintiff further maintains that the VA had a "policy that a staff attorney could request a transfer [to a different decision team] at any time," and that he therefore "did not need a reason to request the transfer to a different supervisor." Id. ¶ 12. He claims that "[m]inorities and women routinely requested such transfers and these requests were granted," while he, an allegedly disabled "white male, was denied the [requested] transfer." Id.
In March 2008, the plaintiff began working for Judge Bohan of the Board of Veterans Appeals. Pl.'s 11/22/10 Opp'n, App. at 26 (Dec. 29, 2008 Perman Letter). "Things went well until June 11, 2008[,] when he received an `untimely' rating on a case by Judge Bohan." Id. The plaintiff continued to receive "untimely and unsatisfactory" ratings on his work from Judge Bohan. Id. "Until these problems began, [the plaintiff] received eight outstanding ratings and complimentary notes. He even received an `outstanding' rating from a different judge while working for Judge Bohan in September 2008." Id.
On November 17, 2008, the plaintiff e-mailed James Terry, the Chairman of the Board of Veterans Appeals, stating that he
The plaintiff maintains that he is disabled and could not meet his production quota unless he worked "excessive hours." 2d Am. Compl. ¶ 17. Specifically, the plaintiff's psychiatrist diagnosed him with adjustment disorder with mixed anxiety and depression. Def.'s Mot., Ex. 3 (December 9, 2008 Letter from Gerald P. Perman, M.D., P.A.) ("Dec. 9, 2008 Perman Letter"). The psychiatrist believed that the plaintiff began suffering from the adjustment disorder with mixed anxiety and depression on June 11, 2008. Id.; see also Pl.'s 11/22/10 Opp'n, App. at 54 (May 18, 2010 Report of Dr. Richard Sutton) ("Until June [2008], Mr. Klute reported he had done well in his position with the [VA] and enjoyed the challenges of his work."). According to the plaintiff, this condition worsened to the point that in December 2008, he needed an accommodation to continue working.2d Am. Compl. ¶ 10; see also Pl.'s 11/22/10 Opp'n, App. at 26 (Dec. 9, 2008 Perman Letter) ("Mr. Klute has fallen behind on his weekly case quotas because of the depression, anxiety[,] and difficulty concentrating that working for Judge Bohan has resulted in."). The plaintiff twice requested, once through his psychiatrist, an accommodation in December 2008: first on December 9, 2008, and again on December 29, 2008. See 2d Am. Compl. ¶¶ 10-11. On each occasion the requested accommodation consisted of a reduced caseload and transfer to another "decision team" (or supervisor).2d Am. Compl. ¶¶ 10-11; Def.'s Stmnt. ¶ 7. Each time the request was denied.2d Am. Compl. ¶¶ 10-11; Def.'s Stmnt. ¶ 7. In March 2009, the plaintiff "again requested a waiver of the fair share production requirements [i.e., a reduced caseload] and a transfer to a different decision team [i.e., a different supervisor]." 2d Am. Compl. ¶ 16. The requests were also denied by letter dated March 9, 2009. Id.
The plaintiff asserts that because of the allegedly discriminatory treatment, he "missed work from December 9, 2008[,] to March 30, 2009, and was placed under severe emotional stress." 2d Am. Compl. ¶ 14. "He nevertheless returned to work" and "was threatened with a performance improvement plan under the same supervisor due to his failure to meet the case production requirements." Id. ¶¶ 14-15. Because of the allegedly discriminatory treatment, the plaintiff retired on March 31, 2010. Id. ¶ 17. He claims that he "would not have left federal service if he had been granted the accommodations he requested." Id.
The plaintiff originally filed his complaint on July 2, 2010. He then filed an Amended Complaint on August 6, 2010, alleging discrimination in violation of the Rehabilitation Act, Title VII, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12102, 12111-12 (2006). The defendant filed his first motion for summary judgment on November 5, 2010. On July 12, 2011, the Court, acting sua sponte, dismissed all claims without prejudice, denied without prejudice the defendant's motion for summary judgment, and directed the plaintiff to file a second amended complaint.
As he has from the inception of this lawsuit, the plaintiff asserts that the denials of his requests for reasonable accommodations in the form of a reduced workload and a different supervisor constituted disability, race, and sex discrimination.2d Am. Compl. ¶ 1. The defendant responds by arguing that the plaintiff has not shown that he is disabled within the meaning of the Rehabilitation Act, Def.'s Mem. at 11, and that his claims of race and sex discrimination must fail because he has not rebutted the defendant's proffer of a legitimate, nondiscriminatory reason for the VA's refusal to transfer him to another decision team, id. at 15. This Memorandum Opinion addresses these arguments.
Federal Rule of Civil Procedure 12(d) provides that "[i]f, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."
As noted above, the plaintiff brings this action under the Rehabilitation Act and Title VII. The Court will address the plaintiff's claims under these two statutes in turn.
"[T]he Rehabilitation Act prohibits federal agencies from engaging in employment discrimination against disabled individuals and further requires agencies to make reasonable accommodations for persons with disabilities unless such accommodations would impose undue hardship on the agency." Nurriddin v. Bolden, 674 F.Supp.2d 64, 82 (D.D.C.2009). Thus, "[t]o sustain a disability claim under the Rehabilitation Act, a plaintiff must as a threshold matter establish that he or she has a disability." Rand, 609 F.Supp.2d at 102 (citing Bonieskie v. Mukasey, 540 F.Supp.2d 190, 197 (D.D.C.2008)). An individual is disabled if he: (1) has "a physical or mental impairment that substantially limits one or more of [his] major life activities," (2) has "a record of such impairment," or (3) has been "regarded as having such an impairment." 42 U.S.C. § 12102(1);
Here, it is clear from the record that, while the plaintiff does suffer from various physical and mental impairments, these impairments do not rise to a disability within the meaning of the Rehabilitation Act, as they do not substantially limit him in the major life activity of working.
Id. at 27. Both the plaintiff and his doctor therefore believed that the plaintiff could again be a successful staff attorney at the VA if he had a different supervisor and if he could "start[] afresh with a clean slate." Def.'s Mot., Ex. 3 (Dec. 9, 2008 Perman Letter) ¶ 25. Moreover, the record makes several references to the fact that even after the plaintiff began to suffer from the Adjustment Disorder, his claimed mental disability, he received a positive review from another judge. See, e.g., Pl.'s 11/22/10 Opp'n, App. at 26 (Dec. 29, 2008 Perman Letter) ("He even received an `outstanding' rating from a different judge while working for Judge Bohan in September 2008."). The evidence before the Court, therefore, does not show that the plaintiff's impairments "prevented him from performing a `substantial class' or `broad range' of jobs otherwise available to him," Nurriddin, 674 F.Supp.2d at 83 (quoting Duncan, 240 F.3d at 1114 n. 1); indeed, they did not even prevent him from performing the duties of a staff attorney at the VA. Rather, the evidence before the Court shows that the plaintiff was dissatisfied with his supervisor and his work environment. There is an abundance of authority making clear that impairments developed or exacerbated under such circumstances do not constitute a disability under the Rehabilitation Act. See, e.g., Haynes, 392 F.3d at 483 (observing that the plaintiff had conceded that if "the symptoms of an impairment are brought on by a single workplace, such an impairment is not substantially limiting within the meaning of the ADA"); id. ("If the impact of an impairment can be eliminated by changing the address at which an individual works, that impairment is neither permanent nor long term."); Gonzagowski v. Widnall, 115 F.3d 744, 746-47 (10th Cir.1997) (explaining that the plaintiff claimed disability in the form of "an anxiety disorder that arose from conflicts with his supervisor and poor performance reviews," and the district court's finding that the plaintiff's "mental impairment seem[ed] to be limited to and arise out of a specific stressful work situation," was "[a]n impairment of such narrow scope [that it did] not qualify as a disability"); Nurriddin, 674 F.Supp.2d at 84 (acknowledging that the plaintiff had "effectively conceded that he [was] not precluded from a broad range of jobs by alleging that he [could] work outside the negative atmosphere that existed within [his employment division]"); Rand, 609 F.Supp.2d at 103-04 (concluding that the plaintiff was not disabled within the meaning of the Rehabilitation Act because the "evidence on which she [had] relie[d] show[ed], at most, that to the extent her impairment interfere[d] with her
Title VII provides that "[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. 2000e-2(a)(1). Although this section of the statute applies only to private employers, another section of Title VII clarifies that its prohibitions apply to federal agencies as well. 42 U.S.C. 2000e-16(a). In disparate treatment suits alleging violations of Title VII, a plaintiff can prove his case either with direct evidence of discrimination or by indirectly proving a prima facie case under the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The District of Columbia Circuit has, however, made clear that when deciding motions for summary judgment in a case in which the employer has asserted a legitimate, nondiscriminatory reason for its allegedly discriminatory employment decision, the district court should not consider whether the plaintiff has satisfactorily proven his prima facie case:
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008).
The plaintiff asserts that he was discriminated against on the basis of sex and race when the VA refused his request to transfer to a different decision team.
The Court finds two reasons which support the conclusion that the plaintiff has not met his burden under Brady. First, it is undisputed that the plaintiff began his employment at the VA at the GS-11 level, and had reached the GS-13 level when he retired on April 1, 2010. 2d Am. Compl. ¶ 7. The August 26, 2009 e-mail from Steve Keller that the plaintiff contends supports his argument that the VA's decision not to move him to a different decision team was discriminatory begins: "As you know, GS-14 level attorneys (and, if necessary, a few senior GS-13 attorneys) will be rotated among the Decision Teams to provide exposure to new ideas, new colleagues[,] and scenic new locations with the Board's demesne." Pl.'s 11/22/10 Opp'n, App. at 48. The reasons for the rotation are insignificant as the e-mail clearly explains the eligibility requirements for transfer — attainment of a certain grade level. In his deposition, Mr. Keller explained further:
Def.'s Mot., Keller Decl. ¶¶ 3-4. The Court notes as an initial matter that the record is entirely silent on when the plaintiff attained GS-13 status; there is therefore no evidence from which a jury could assess whether he had two years' time-in-grade. Furthermore, it is undisputed that the plaintiff had experienced performance issues in the form of poor reviews from Judge Bohan. See Def.'s Mot., Ex. 1 (Nov. 17, 2008 E-mail) (noting that the "current professional work relationship" between the plaintiff, "Judge Bohan and [Deputy Vice Chairman] Cohn [did] not appear to be working out"); see also Def.'s Mot.,
Next, the plaintiff's attempt to compare his circumstances to those of Jeanne Schlegal's transfer falls flat.
Because the plaintiff was not a disabled individual as defined by the Rehabilitation
Here, the plaintiff alleges that he was disabled and that the defendant failed to accommodate his disability "from a period beginning in November ... 2008 and continuing into March 2009 and thereafter" — dates occurring both before and after the enactment of the January 2009 amendments.2d Am. Compl. ¶ 2. The defendant has failed to present any argument whatsoever about which standard should apply, and the plaintiff offers only unsupported assertions. See Pl.'s 11/22/10 Opp'n at 2 (observing that the "documentation that [the p]laintiff was a qualified individual with a disability under the law both before and after January 1, 2009" is attached); id. at 3 ("If [the p]laintiff is entitled to summary judgment pursuant to the law prior to January 1, 2009[, he] certainly is entitled to summary judgment pursuant to the ADA Amendments Act of 2008 that went into effect on that date."). Nonetheless, because it concludes that the plaintiff has failed to demonstrate that he is disabled even under the more forgiving post-amendment standard, the Court will not endeavor to determine which standard, or combination thereof, must be applied when the allegedly discriminatory conduct occurred both before and after the enactment of the amendments.
Id. at 3-4. As noted above, however, an individual is disabled within the meaning of the Rehabilitation Act only if he: (1) has "a physical or mental impairment that substantially limits one or more of [his] major life activities," (2) has "a record of such impairment," or (3) has been "regarded as having such an impairment." 42 U.S.C. § 12102(1) (emphasis added). Because "[i]t is the plaintiff's burden to prove that he is disabled," Haynes, 392 F.3d at 478, and because the definition of disabled hinges upon questions of substantial limitation to one or more major life activities, logic demands that the plaintiff also prove that his impairments substantially limit at least one major life activity. Drawing all justifiable inferences in favor of the plaintiff as the nonmoving party and accepting the plaintiff's evidence as true, Anderson, 477 U.S. at 255, 106 S.Ct. 2505, the Court construes the plaintiff's allegations as setting forth a failure to accommodate claim based on his employer's failure to accommodate the fact that he was substantially limited in the major life activity of working.
It also is perhaps worth noting that the second and third bases on which an individual may claim to be disabled within the meaning of the Act — having a record of a substantially limiting mental or physical impairment or being regarded as having such an impairment — are not at issue here, as the plaintiff has presented no evidence that anyone at the VA regarded him as having a substantially limiting impairment or as having a record of such an impairment. The plaintiff denies "that management was unaware of his health problems prior to Dr. Perman's letter," Pl.'s 11/22/10 Resp. to Def.'s Facts ¶ 4, but even assuming for the sake of argument that an employer's awareness of an employee's health problems could qualify as a disability under either the second or third basis, the plaintiff offers nothing more than this "mere denial," which is insufficient to create a triable issue of fact, Burke, 286 F.3d at 517.
