RUDOLPH CONTRERAS, United States District Judge
Edna Doak brings this employment discrimination action against Jeh Johnson, the Secretary of Homeland Security ("Department"), in his official capacity. Ms. Doak alleges that her employer, the United States Coast Guard ("USCG"),
Edna Doak was employed as a Program Analyst for the United States Coast Guard from November 2007 through August 2009, and as a Management Program Analyst from August 2009 through October 2010. Compl. ¶¶ 5-6, ECF No. 1. Her day-to-day responsibilities were to support the Surface Program, which included "[w]atching the budget, preparing obligation plans, working with the program manager, doing procurement requests," and "[m]eeting with the program manager and the support team" to plan for the building of boats. Doak Dep. 21:24-25, 22:1-9, ECF No. 16-13. Her position required frequent interaction with others. See Def.'s Resp. to Interrogatory 3, ECF No. 16-1.
Ms. Doak's scheduled start time at work was 8:15 a.m. See Def.'s Ex. 27, ECF No. 14-20 ("[m]y start time since 26 November 2007 has been 0815."); Def.'s Ex. 24, ECF No. 14-19. This was one of the later start times of anyone on her team. See Souther Dep. 49:12-15, ECF No. 14-3; Cohen Dep. 64:16-19, ECF No. 14-2. The USCG's Acquisition Directorate Standard Operating Procedure defines the designated working hours as "normally the hours between 0600 and 1800 Monday through Friday. The CG-9 directorate is closed on weekends and government holidays." See Def.'s Ex. 7 ¶ 5.f, ECF No. 14-7. The
Ms. Doak suffers from hypothyroidism and depression. She was diagnosed with both of these in 1993. Doak Decl. ¶¶ 9, 10, Pl.'s Ex. A, ECF No. 17-1. In June 2009,
Around December 2009, Mr. Cohen met with Ms. Doak to discuss her inability to work a nine-hour shift and discuss the fact that she was absent from work a lot due to her illness. See Def.'s Ex. 6 at 1-2, ECF No. 14-6, Def.'s Ex. 8 at 6, ECF No. 14-8. On January 19, 2010, Mr. Cohen issued an Employment Status Memorandum requesting that Ms. Doak return to full-time duty immediately because she had nearly exhausted her FMLA leave, and her absences were disrupting the work routine and having a negative impact on her projects. See Def.'s Ex. 9 ¶ 2, ECF No. 14-9. In that letter, he explained that as of January 19, 2010, Ms. Doak had used 11.5 weeks of FMLA leave, and only had 2.5 days remaining, and that she currently had negative leaves balances of 233 hours of sick leave and negative 35.15 hours of annual leave. Id. ¶ 3. He further explained that Ms. Doak's "excessive absences and continued failure to submit appropriate requests for leave in advance cannot continue to be excused and may result in disciplinary action taken against" her. Id. ¶ 4.
Despite this letter, Ms. Doak was absent without leave ("AWOL") for several hours each on January 25, 2010, and January 26, 2010. On January 25, 2010, Mr. Cohen wrote another memorandum to Ms. Doak explaining that she had exhausted her FMLA leave and that she had to return to full-time duty status. See Def.'s Ex. 11, ECF No. 14-11. On February 22, 2010, Mr. Cohen officially reprimanded Ms. Doak by letter for being AWOL on January 25 and January 26, 2010. See Def.'s Ex. 12, ECF No. 14-12. However, the Department agreed to hold the official reprimand letter in abeyance so that Ms. Doak could provide medical documentation to support her absences (1) unrelated to her FMLA leave; (2) her AWOL absences on January 25 and 26, 2010, and (3) her pending or outstanding leave requests related to medical issues. See Def.'s Ex. 13, ECF No. 14-13. On March 24, 2010, Mr. Cohen submitted a request for medical documentation to Ms. Doak, because the documentation she had provided, see, e.g., Def.'s Ex. 14, ECF No. 16-4, did not support her "absenteeism nor did it clearly
On April 16, 2010, Ms. Doak provided medical documentation to Mr. Cohen through her doctor, Dr. Elizabeth P. Berbano. See Def.'s Ex. 16, ECF No. 16-5. In Dr. Berbano's letter, she explained that Ms. Doak suffered from various impairments such as major depressive disorder, obstructive sleep apnea, hypothyroidism, and migraines. See id. She also recommended that Ms. Doak be given the following "accommodations to facilitate increased work or productivity: (a) telecommuting from home, (b) full-spectrum light for her work space," "(c) anti-glare computer screen (glare precipitates migraines), (d) work in an area in which she is not subject to cold air currents that cause her muscle tension in the neck and head," "(e) consideration for adjustment of work schedule from 11 AM to 7 PM because of the difficulty of arising in the morning," and "(f) consideration for the option of weekend hours to make up for weekday hours missed." Id.
The Coast Guard's Division of Operational Medicine and Medical Readiness reviews requests for accommodations made by civilian employees. Def.'s Statement Undisputed Facts ¶ 21, ¶ 35. Dr. Erica Schwartz, a physician in the Division of Operational Medicine evaluated the April 16, 2010 letter from Dr. Berbano and recommended to Mr. Cohen
On May 6, 2010, Mr. Cohen provided Ms. Doak with "a noise cancelling headset and anti-glare screen for [her] computer screen, permitted her to wear sunglasses in the office as needed, asked that three of the overhead lights directly above her desk be turned off, and identified break rooms that the Plaintiff could use as necessary for medical reasons." Def.'s Statement Undisputed Facts ¶ 40. Mr. Cohen did not provide Ms. Doak with an 11:00 a.m. start time because, he explained, "her position with an acquisition project required daily and frequent interaction with project staff, other business managers, resource staff, and numerous agencies," and an 11:00 a.m. start time "would place the project and resource office in a hardship position." Id. ¶ 43. See also Def.'s Ex. 19 ¶ 4, ECF No. 16-7 ("Your billet is a matrix position with a Coast Guard acquisition project, which requires you to interact daily, and frequently with the project staff, other business managers and resource staff and numerous external agencies. I do not believe you will be able to meet those obligations with a work schedule that does not have you arrive until 1100 daily and therefore would place the project and resource office in a hardship position
In response, on May 21, 2010, Ms. Doak wrote to Mr. Cohen, explaining that she would prefer a 10:00 a.m. start time, but would "work toward a 9:00 a.m. arrival" time. See Def.'s Ex. 22, ECF No. 16-8. Mr. Cohen replied via email on June 1, 2010, explaining that a 10:00 a.m. start time was not acceptable; he instead offered her a 9:00 a.m. start time. See Def.'s Ex. 23, ECF No. 14-18. Ms. Doak did not accept a 9:00 a.m. start time at that time. Doak Dep. 237:7-18. As such, her scheduled start time remained 8:15 a.m. See Doak Dep. 238:2-9.
By the end of May 2010, Ms. Doak was arriving to work anywhere between 10:00 a.m. and Noon. See Doak Dep. 271:3-10. Mr. Cohen issued another letter of reprimand to her on May 24, 2010, based on more than 30 AWOL hours that she had incurred since her February 2010 letter of reprimand. See Def.'s Ex. 24, ECF No. 14-19.
On July 16, 2010, Ms. Doak submitted another letter from Dr. Berbano "clarifying" her April letter. See Def.'s Ex. 25, ECF No. 16-9. In that letter, Dr. Berbano modified her recommended start time to 9:30 a.m. Id. Dr. Brent Pennington responded to that request on July 20, 2010, stating that Dr. Berbano's letter did not provide medical justification for "an arbitrary start time of 0930 instead of 0830 or 0900." Def.'s Ex. 26, ECF No. 16-10. On July 23, 2010, Ms. Doak agreed to a 9:00 a.m. arrival time at work. Def.'s Ex. 27, ECF No. 14-20. See also Souther Dep. 13, ECF No. 14-3. Despite that, she was still "unable to arrive at work on time." Def.'s Statement Undisputed Facts ¶ 61. In addition, Ms. Doak was also AWOL on July 27, 28, 29, 30, and August 2, 3, and 4, 2010. Id. ¶¶ 66-67. From January 31 to August 9, 2010, Ms. Doak had missed approximately 52 percent of her scheduled work hours. Id. ¶ 64. See also Def.'s Ex. 32 at 1, ECF No. 14-24.
On August 9, 2010, Mr. Cohen issued a notice to Ms. Doak of her proposed removal from her position due to (1) her "medical inability to perform the essential duties of [her] position, due to various medical reasons, which have caused [her] to be unable to maintain [her] regular work schedule," and (2) her hours in AWOL status. Id. ¶ 1. The union responded to the Notice of Proposed Removal on behalf of Ms. Doak on August 31, 2010. See Def.'s Ex. 33, ECF No. 14-25. On September 30, 2010, after considering the evidence before him, Mr. Souther determined that Ms. Doak's removal "was warranted to promote the efficiency of the service." See Def.'s Statement Undisputed Facts ¶ 68.
The plaintiff contacted an Equal Employment Opportunity ("EEO") counselor on October 6, 2010, challenging her September 30 removal. Id. ¶ 73. The Department entered into a settlement agreement under which it agreed to allow Ms. Doak to retire effective October 31, 2010 instead of being terminated. Id. ¶ 75. See also Def.'s Ex. 36, ECF No. 14-28. On February 22, 2011, Ms. Doak filed a formal complaint against the Department, and on June 19, 2012, the Department issued a final agency decision, in which it found that Ms. Doak "failed to prove by a preponderance of the evidence that USCG discriminated against" her. See Pl.'s Ex. 7, ECF No. 17-1.
Ms. Doak then filed the instant action, alleging that the Department discriminated against her by "discharging her from her employment because of her disability," and by failing to reasonably accommodate her disability. See Compl. Counts I & II. She also alleges that the Department retaliated against her by terminating
Federal courts are courts of limited jurisdiction, and the law presumes that "a cause lies outside this limited jurisdiction...." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). It is the plaintiff's burden to establish that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is `so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974)).
Because subject matter jurisdiction focuses on the Court's power to hear a claim, the Court must give the plaintiff's factual allegations closer scrutiny than would be required for a 12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C.2001). Thus, the court is not limited to the allegations contained in the complaint. See Wilderness Soc'y v. Griles, 824 F.2d 4, 16 n. 10 (D.C.Cir.1987).
A court may grant summary judgment 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). A "material" fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions
As a threshold matter, the defendant argues that Ms. Doak's failure to accommodate claim in Count II, and certain of her disparate treatment claims in Count I should be dismissed for failure to exhaust administrative remedies. Under the Rehabilitation Act, federal employees may file an action "only after exhausting their administrative remedies before the relevant agency for each allegedly discriminatory act." Mahoney v. Donovan, 824 F.Supp.2d 49, 58 (D.D.C.2011). "[F]ailure to exhaust administrative remedies is a jurisdictional defect, requiring dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1)." Ellison v. Napolitano, 901 F.Supp.2d 118, 124 (D.D.C.2012) (citing Spinelli v. Goss, 446 F.3d 159, 162 (D.C.Cir.2006)); Moore v. Schafer, 573 F.Supp.2d 216, 219 (D.D.C.2008). Because it is a jurisdictional requirement, "the plaintiff has the burden to plead and prove it." Ellison, 901 F.Supp.2d at 124 (citing Carty v. District of Columbia, 699 F.Supp.2d 1, 2 n. 2 (D.D.C.2010) ("under the Rehabilitation Act, exhaustion is a jurisdictional requirement that a plaintiff has the burden to plead and prove")).
Under the Rehabilitation Act, in order to exhaust, "an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory...." 29 C.F.R. § 1614.105(a)(1). The Counselor holds an initial counseling session, advises the complainant of certain rights, and holds a final interview. 29 C.F.R. § 1614.105(b)(1), (c), (d). If the matter is not resolved through counseling, the complainant may file a formal administrative complaint. 29 C.F.R. § 1614.106(b). "Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice[,]'" and a party must exhaust her administrative remedies for each discrete act of discrimination alleged or lose the ability to recover for it. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
As the plaintiff pled in her Complaint, she contacted an EEO counselor on October 6, 2010, challenging the Department's September 30, 2010 removal decision. Def.'s Statement Undisputed Facts ¶ 73, Compl. ¶¶ 21-23. She followed-up this conversation by filing a formal administrative complaint on February 22, 2011. In the formal administrative complaint, Ms. Doak stated that she was subjected to a continuous "hostile work environment
The plaintiff argues that USCG did not raise this failure to exhaust argument in the administrative proceedings,
Applying that same principle to Ms. Doak's disparate impact claims in Count I,
Even if the unexhausted claims
The Rehabilitation Act provides that a "qualified individual with a disability" may not "be subjected to discrimination" by any federal agency "solely by reason of her or his disability." 29 U.S.C. § 794(a); see also Mogenhan v. Napolitano, 613 F.3d 1162, 1165 (D.C.Cir.2010). Claims of discrimination brought under the Rehabilitation Act are analyzed similarly to claims brought under the Americans with Disabilities Act of 1990 ("ADA"). 29 U.S.C. § 794(d). Under the ADA, claims of discrimination include disparate treatment claims and failure to accommodate claims. See, e.g., Lee v. District of Columbia, 920 F.Supp.2d 127, 132-33 (D.D.C.2013) ("Claims of discrimination under the ADA can take one of four forms: intentional discrimination, disparate impact, hostile work environment, and failure to accommodate." (citations omitted)). Ms. Doak brings disparate treatment and failure to accommodate claims in this action, and the Court analyzes both in turn.
Courts analyze disparate treatment disability discrimination claims under the McDonnell Douglas burden-shifting framework. See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288-89 (D.C.Cir.1998) (en banc). Under this framework, the plaintiff bears the burden of establishing "a prima facie case of discrimination by a preponderance of the evidence. If the plaintiff establishes a prima facie case, the employer must then articulate a legitimate, non-discriminatory reason for its actions. The plaintiff must then demonstrate that the employer's stated reason was pretextual and that the true reason was discriminatory." Taylor v. Small, 350 F.3d 1286, 1292 (D.C.Cir.2003) (citing Stella v. Mineta, 284 F.3d 135, 144 (D.C.Cir.2002)). A plaintiff can establish a prima facie case by showing that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." See Stella, 284 F.3d at 145 (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999)).
The D.C. Circuit, however, has modified the McDonnell-Douglas test, finding that "the question whether the employee made out a prima facie case is almost always irrelevant." Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008). Therefore, instead,
Id. at 494 (emphasis added). The Supreme Court has explained that "a reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in original).
Ms. Doak asserts several adverse employment actions: the Department's August 9, 2010, Notice of Proposed Removal, the Department's September 30, 2010, decision to terminate her employment,
Regardless of the adverse employment action taken in this case — or whether any of them actually constitutes an adverse employment action — Ms. Doak has not "produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated" against her. Brady, 520 F.3d at 494. The Department's non-discriminatory reason for proposing to remove Ms. Doak was her perpetual attendance problem. In its August 9, 2010 Notice of Proposed Removal, the Department explained that it was considering
The Department also explained that Ms. Doak's absences had negative effects on her team, and caused the team projects she worked on to suffer. As Mr. Souther noted in his Notice of Decision on Proposed Removal, Ms. Doak's "frequent unscheduled absences prevent[ed] [her] from participating in program meetings and other work group collaboration essential to full performance, creating an undue hardship on co-workers required to perform these responsibilities on her behalf." Def.'s Ex. 34 ¶ 3, ECF No. 14-26. In addition, frequent absences caused her co-workers to lose time on their assignments, and also caused her to miss the training required of her position. Id. The repeated absences, and the deleterious effect they had on her team at the Coast Guard, therefore served as legitimate reasons for terminating Ms. Doak that are distinct from her disability.
Ms. Doak has provided no evidence to the contrary indicating that this reason was pretextual and that discrimination because of her disability was the real reason. She does not dispute that she had an attendance problem, but instead argues that her "absences were due to Defendant's failure to accommodate her" by failing to allow her to come in later in the day and alter her work schedule. Pl.'s Opp'n Mot. 14-15, ECF No. 17. But her failure to accommodate claim is a separate claim that is addressed below. Ms. Doak has presented no evidence that her supervisors discriminated against her because of her disability or harbored any animus against disabled individuals. Ms. Doak therefore failed to "produce[] sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason" for terminating her. See Brady, 520 F.3d at 494.
Ms. Doak next asserts that the Department discriminated against her by failing to reasonably accommodate her disability. To establish a prima facie case of discrimination based on the failure to accommodate under the Rehabilitation Act, a plaintiff must proffer evidence from which a reasonable fact-finder could find that (1) she had a qualifying disability within the meaning of the statute, (2) her employer had notice of the disability, (3) with reasonable accommodation, she could perform the essential functions of the position, and (4) she requested an accommodation but the employer denied her request. See Graffius v. Shinseki, 672 F.Supp.2d 119, 125 (D.D.C.2009) (citing Scarborough v. Natsios, 190 F.Supp.2d 5, 19 (D.D.C. 2002)). In the D.C. Circuit, failure to accommodate claims are not subject to the McDonnell Douglas burden-shifting framework. See Aka, 156 F.3d at 1288 (explaining that the plaintiff's "reasonable-accommodation
The D.C. Circuit has explained that "an employer is not required to provide an employee that accommodation he requests or prefers, the employer need only provide some reasonable accommodation." Aka, 156 F.3d at 1305 (quoting Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir.1996)). The regulations governing accommodations under the ADA, and in turn, the Rehabilitation Act, define reasonable accommodations as "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(1)(ii). A "qualified individual" under the Rehabilitation Act is one who "satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m).
In this case, Ms. Doak's doctor, Dr. Berbano recommended that six accommodations be made regarding Ms. Doak's disabilities of migraines, sleep apnea, depressive disorder, and hypothyroidism: (1) telecommuting from home, (2) full-spectrum light for her work space, (3) antiglare computer screen, (4) work in an area less subject to cold air currents,
Mr. Cohen immediately implemented all of Dr. Schwartz's suggestions. The email correspondence on the record shows that Mr. Cohen worked diligently to ensure that Ms. Doak had an accommodated work space immediately. See, e.g., Cohen Dep. 22:9-14, ECF No. 14-2. ("The goal was always to get Edna back to work, so I provided everything in this April 28, 2010 [Dr. Schwartz] memo as best as I could."). For instance, on May 5, 2010, Mr. Cohen contacted a Facilities Specialist to request that three overhead lights be turned off above Ms. Doak's cubicle. See Def.'s Ex. 21, ECF No. 14-17. His May 6, 2010 letter to Ms. Doak also explained that he provided Ms. Doak with an anti-glare device
Ms. Doak takes issue with the fact that the Department "denied [her] requests to telework,
As courts in this jurisdiction have explained, the modified work schedule as a reasonable accommodation analysis generally turns on the nature of the position for which the employee is requesting the accommodation. For instance, in Carr v. Reno, the plaintiff requested, inter alia, a flexible arrival time to work, because she had an ear disability that caused her periodic dizziness, nausea, and vomiting, and that made it difficult for her to make it into work at her scheduled 8:00 a.m. arrival time. 23 F.3d at 527, 529, 531. Her employer denied that request because of a daily 4:00 p.m. deadline that the employer had to make, that it would not be able to if Ms. Carr could not arrive to work at 8:00 a.m. each day and work a full eight-hour shift. Id. at 530. The court held that "to require an employer to accept an openended `work when able' schedule for a time-sensitive job would stretch `reasonable accommodation' to absurd proportions and imperil the effectiveness of the employer's public enterprise." Id. at 531. The daily deadline, in other words, was the critical element of her position that rendered the employee's proposed accommodation of a flexible work time unfeasible. See Breen v. Dep't of Transp., 282 F.3d 839, 843 (D.C.Cir.2002).
In contrast, in Langon, the plaintiff, who suffered from multiple sclerosis, requested that she be allowed to perform her job as a computer programmer at home. See Langon, 959 F.2d at 1054-55. The court found that summary judgment for the employer was inappropriate because there was a genuine dispute of material fact as to whether the plaintiff could have performed the essential functions of her job — computer
Lower courts have interpreted Langon, Carr, and Breen as establishing a dichotomy wherein a specific and well-defined accommodation is deemed reasonable, and an erratic and unpredictable accommodation, such as an open-ended "work whenever you want schedule" is unreasonable as a matter of law. See, e.g., Solomon v. Vilsack, 845 F.Supp.2d 61, 71 (D.D.C.2012) ("D.C. Circuit precedent makes clear that an employee's request to work whenever he or she wants is unreasonable as a matter of law. On the other hand, specific and well-defined accommodations are not unreasonable." (internal quotation marks and citations omitted)); Scarborough, 190 F.Supp.2d at 26 n. 21 (explaining that a request "to work only on the infrequent and unpredictable occasions" that the plaintiff felt able "was nothing like the specific and well-defined accommodations at issue in Langon and Breen, and thus was not reasonable"). Other courts have also agreed with this legal proposition. See Fisher v. Vizioncore, Inc., 429 Fed. Appx. 613, 616 (7th Cir.2011) (noting that "an open-ended schedule with the privilege to miss workdays frequently and without notice" is not reasonable as a matter of law); E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 949 (7th Cir.2001) (explaining that "the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability") (quoting Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir 1999)).
For instance, in Scarborough v. Natsios, the court found that the plaintiff's request for leave without pay anytime that he was unable to report to work because of his chronic flu-like symptoms was unreasonable as a matter of law. 190 F.Supp.2d at 25. The court elaborated that the plaintiff's request that he be granted leave "in an erratic, unpredictable manner — whenever [the] plaintiff felt he needed to miss work" — was unreasonable as a matter of law, citing Carr. Id. The court similarly found such a "work whenever the employee wants" schedule request unreasonable as a matter of law in Solomon v. Vilsack, 845 F.Supp.2d at 72-73. In that case, the plaintiff Ms. Solomon's ordinary working schedule was 7:30 a.m. to 6:00 p.m., four days a week, with Wednesdays off. Id. at 67. She requested a flexible schedule generally, and asked her employer if she could take it "day-by-day" because she was experiencing difficulty working her scheduled hours in light of her disability that included various mental health disorders. Id. at 72. The court found that because "she did not seek to shift her schedule in this matter on any predictable or regular basis," her request was really a request for "an open-ended schedule." Id. As such, it was unreasonable as a matter of law. Id. at 73.
Like the requests made by the plaintiffs in Solomon and Scarborough, Ms. Doak's request falls into the camp of the openended "work whenever you want" schedule that is unreasonable as a matter of law. In her initial April 2010 request for accommodations, Ms. Doak requested to be able to telework, to be given an adjusted schedule of 11:00 a.m. to 7:00 p.m., and to be allowed to make up missed hours on the weekend. See Def.'s Ex. 16. Though the alternative hours request was specific enough, in Ms. Doak's case, it was neither
Moreover, it is undisputed that Ms. Doak's schedule was unpredictable. Ms. Doak herself testified that her arrival time to work was inconsistent, regardless of the start time she requested, see Doak Dep. 51-52, and that sometimes she would arrive to work as late as 2:00 p.m. Id. at 51:21-22. Ms. Doak also stated that sometimes she was "knocked out" for the entire day and not able to get up or come into work at all, let alone late. Doak Dep. at 51:16-17. In addition, the Department explained that Ms. Doak's inconsistent work schedule made it difficult to try to accommodate her. See Souther Dep. at 41 ("Based on the information I had ... there were days [Ms. Doak] didn't come to work at all, there were days she came in at 2:00 or 2:30, there were days she was in by 11:00, there were days she was in by 9:00...."); Pennington Dep. at 17-18 ("Ms. Doak had unpredictable episodes of pain that required medication that had serious side effects, and because both the episodes were unpredictable and the side effects of the medications were incapacitations, that a fixed work schedule was not possible because of the unpredictability of her unstable medical condition."); Pennington Mem., Def.'s Ex. 26, ECF No. 16-10 ("Dr. Berbano indicated that Ms. Doak has a condition that causes her to be `incapacitated due to the pain.' Additionally, the treatment for these incapacitating episodes completely incapacitate[s] her.
Moreover, Ms. Doak's physical presence was required at work, making telecommuting in addition to, or instead of, a modified hourly schedule, an unreasonable accommodation. The reasonable accommodation analysis established by Carr, Langon, and Breen and their progeny turns, to a degree, on whether the plaintiff's physical presence at work was an essential function of her job.
In this case, the Department explained that Ms. Doak's need to work with her team made an adjusted work schedule or telework impracticable. Ms. Doak's colleagues arrived at work anytime between 6:00 a.m. and 8:00 a.m., see Souther Dep. at 28-31, and conducted meetings,
Even if Ms. Doak's physical presence at work was not required, however, Ms. Doak was still not able to telework effectively because her disability incapacitated her regardless of where she was, and thus she could not perform the essential function of her job even with an accommodation. Even if she had been granted the accommodation of teleworking or weekend hours, she still would not have been able to perform any work if a migraine struck. See, e.g., Def.'s Ex. 25, Dr. Berbano Mem. ("Ms. Doak suffers from periodic migraines. When she experiences acute onset of a migraine, she is incapacitated due to the pain and cannot concentrate on the tasks at hand, whether at her job or at home performing routine activities of daily living ....") (emphasis added); Doak Dep. at 145:3-14 (explaining that she would "likely not" be able to work either at home or at the office when she was suffering from a migraine) (emphasis added). Thus, whether she was working in the office or from home, she still required a "work when I can" schedule that is unreasonable as a matter of law.
Ms. Doak's final claim is that the Department retaliated against her by deciding to terminate her in response to her request for reasonable accommodations. See Compl. ¶ 30. The ADA, and in turn, the Rehabilitation Act, also contains an anti-retaliation provision. See Mogenhan, 613 F.3d at 1165 (quoting 29 U.S.C. § 794(d)). The elements of retaliation and discrimination claims are the same under Title VII and the Rehabilitation Act. Id.; see also Munro v. LaHood, 839 F.Supp.2d 354, 360 (D.D.C.2012). As such, retaliation claims are also governed by the McDonnell Douglas burden-shifting framework. Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). To establish a prima facie case of retaliation, which is the first step in the burden-shifting analysis, the plaintiff must show "(1) that [s]he engaged in [a] statutorily protected activity; (2) that [s]he suffered a materially adverse action by h[er] employer; and (3) that a causal link connects the two." Id.; see also Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.Cir. 2009). Though discrimination and retaliation claims are similarly analyzed, the D.C. Circuit has explained one difference in the elements: that "`[a]dverse actions' in the retaliation context encompass a broader sweep of actions than those in a pure discrimination claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 n. 4 (D.C.Cir. 2008). This is because, "[r]etaliation claims are `not limited to discriminatory actions that affect the terms and conditions of employment' and may extend to harms that are not workplace-related or employment-related so long as `a reasonable employee would have found the challenged action materially adverse.'" Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). The D.C. Circuit has since elaborated that "materially adverse action" in the retaliation context "means [that] it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Mogenhan, 613 F.3d at 1166 (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405); accord Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.Cir.2010).
"[Once] the plaintiff establishes a prima facie case, the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for its actions." Jones, 557 F.3d at 677 (internal quotation marks and citation omitted). "If the employer does so, the burden-shifting framework disappears, and a court ... looks to whether a reasonable jury could infer ... retaliation from all the evidence, which includes not only the prima facie case but also the evidence the plaintiff offers to attack the employer's proffered explanation for its action and other evidence of retaliation." Id. (internal quotation marks omitted).
Ms. Doak argues that she has established a prima facie case of retaliation because she "participated in protected activity by requesting accommodations," "suffered an adverse action when she was forced to resign," and "there is a causal
As set forth above, the Department's decision to remove Ms. Doak was due to her repeated absences, her failure to comply with leave procedures, and the effect of both on her team at the Coast Guard. Ms. Doak has not provided any evidence that this reason was pretextual and that the real reason for terminating her was retaliatory. Based on the fact that Ms. Doak missed nearly 50 percent of her work hours in 2010, no reasonable jury could conclude that chronic absenteeism and tardiness was not the real reason for Ms. Doak's termination and instead, that retaliatory animus was behind the Department's decision to terminate Ms. Doak's employment. As such, the Court must enter judgment for the Department on this claim.
For the foregoing reasons, the defendant's motion is GRANTED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
An employee's resignation or retirement is presumed to be voluntary, unless the employee overcomes the presumption by showing that the resignation or retirement was involuntary, and therefore qualifies as a constructive discharge. Aliotta v. Bair, 614 F.3d 556, 566-67 (D.C.Cir.2010) (citing Veitch v. England, 471 F.3d 124, 134 (D.C.Cir.2006) (Rogers, J., concurring)). If the plaintiff can show she was constructively discharged, that will constitute an adverse employment action. Joyce v. Office of Architect of Capitol, No. 12-1837(JEB), 966 F.Supp.2d 15, 24-25, 2013 WL 4758186, at *7 (D.D.C. Sept. 5, 2013).
A plaintiff suffers a constructive discharge when an employer deliberately denies the plaintiff a reasonable accommodation, and the employer knows that the denial will make the plaintiff's working conditions so intolerable that the plaintiff will be forced to resign. Floyd v. Office of Representative Sheila Jackson Lee, No. 11-1228(RC), 968 F.Supp.2d 308, 330-31, 2013 WL 5429265, at *15 (D.D.C. Sept. 30, 2013). However, an employee's resignation or retirement, when the only other available option for the employee is removal by the employer for-cause, does not qualify as constructive discharge. Keyes v. District Of Columbia, 372 F.3d 434, 439-40 (D.C.Cir.2004) (explaining that when faced with the choice of retirement or for-cause termination, choosing retirement is a difficult choice for the employee, but not an involuntary choice).
The Court need not resolve this difficult issue because, even if it assumes without deciding that Ms. Doak was constructively discharged and therefore suffered an adverse employment action on September 30, 2010, as set forth above, Ms. Doak has not provided sufficient evidence for a reasonable jury to find that the Department's asserted non-discriminatory reason was not the actual reason and that it intentionally discriminated against her. Therefore, to the extent there is any dispute on this issue, it is ultimately immaterial to the outcome of this case.
Moreover, in her deposition, Ms. Doak repeatedly stated that the Department's numbers regarding her AWOL status were "inaccurate." See Doak Dep. at 252-253. However, Ms. Doak's pay statements generally reflect large periods of absences throughout 2010, and Ms. Doak herself never performed an independent analysis to see if the Department's numbers were correct. See id. at 253:23-24. Because the plaintiff has not pointed to anything on the record to create a genuine issue of material fact, the Court considers the facts regarding her hours undisputed.
