Dawson v. Bloch ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATRESHA DAWSON, )
Plaintiff, §
v. § Civil Case No. 07-1354 (RJL)
)
i`l‘t?,;‘§`,,“§c§i‘§f,ff,',`§;`.}”‘” § FILED
Defendant. § Nov 19 2010
Clerk, U.S. District & Bankruptcy
W Courts forthe District of Co|umbia
MEMORANDL OPINION
(Nov@mber jj 2010) [#39]
Plaintiff Natresha Dawson ("Dawson") brings this action against William E.
Reukauf in his official capacity as Acting Special Counsel (the "defendant"), alleging
that her former employer, the Office of Special Counsel ("OSC"), violated the
Whistleb1ower Protection Act of 1989 (the "WPA"), Pub. L. No. 101-12, 103 Stat. 16
(codifled at various sections of 5 U.S.C.), Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973 (the "Rehabilitation
Act”), 29 U.S.C. § 701 et seq. Currently pending before the Court is the defendant’s
Motion for Summary Judgment. Upon review of the pleadings, the entire record, and the
applicable law, the defendant’s motion is GRANTED.
BACKGROUND
Dawson was hired by OSC on June 26, 2005, as a GS-9 paralegal to work in the
OSC’s Customer Service Unit. Def.’s Ex. 19, Robert Wise Aff. 2, Nov. 30, 2006 ("Wise
Aff."). The Customer Service Unit was created in 2005 to respond to hotline calls to
OSC and provide information to federal employees who may wish to file a complaint
with OSC. See z`a’. When the Customer Service Unit first became operational in August
2005, it was staffed by plaintiff and Denise Toney ("Toney"), another paralegal. See
Wise Aff. 2; Def.’s Ex. 25, Denise Toney Aff. 1, Nov. l4, 2006 ("Toney Aff."). Their
primary responsibility was to answer the OSC’s hotline calls from 8:30 a.m. to 5:00 p.m.
during weekdays. See Wise Aff. 2.
In September 2005, Dawson asked Robert Wise ("Wise"), the Director of Human
Resources and her first line supervisor, whether she could adjust her work schedule to
start her days at 7:30 a.m. See id. at 3. Wise denied her requeist because he "could not
afford to do that on a regular basis and still staff the call center." Ia’. Shortly thereafter,
plaintiff began to complain to Wise about a variety of office-related issues, including the
offices in which she worked, an additional request for a flexible schedule, a request for a
promotion, and the work assigned to her. See Def.’s Ex. 28. When plaintiffs complaints
were not addressed to her satisfaction, she sent email messages not only to Wise but to
his supervisor and to the head of the entire agency. See Def.’s Ex. 28. In response, Wise
issued a letter of counseling in which he admonished Dawson for circumventing the
chain of command and contacting the Special Counsel directly. See Def.’s Ex. 29.
Beginning in January 2006, plaintiffs attendance at work became erratic. See
Def.’s Ex. 57. In February 2006, she began receiving "continuation of pay" ("COP")
benefits that she requested for work-related stress.l See Def.’s Ex. 47. From January 20
l "Continuation of pay" benefits under the Federal Employees Compensation Act allow an
employee who is out of work due to traumatic, job-related injury to continue to receive pay up to
to February 20, 2006, Dawson missed ten full days of work under COP status. See Def.
Ex. 57. As such, plaintiffs productivity suffered so much that Wise had to communicate
his concerns about the timeliness of her and Toney’s responses to hotline calls. See
Def.’s Ex. 32.
In addition to her unavailability, Dawson’s behavior at work was, to say the least,
erratic. In late February 2006, Toney reported to the Human Resources office that
plaintiff had made comments in December 2005 about "shooting up" the workplace. See
Toney Aff. 4-8. Toney stated that when Dawson "made the comment, she also made a
gesture with her first finger and her thumb sticking up. . . . She then moved her finger
around the room and made a sound like a machine gun going off_‘tch, tch, tch, tch."’
ld. at 5. In an email, plaintiff denied the incident, claiming that she was "IN HIGH
FEAR FOR MY LIFE AND SAFETY" and accusing her superiors and co~worker of
fabricating the entire account to intimidate, harass, and threaten her life. Def.’s Ex. 68.
Conf`licts within the workplace continued in March 2006, On March 20, 2006, for
example, Wise attempted to talk to Dawson in the hallway of OSC, as it was the first time
that he had seen her at work in several days. Wise Aff. 6. After plaintiff refused to talk
to him, Wise gestured for her to come into his office but she gave a "snippy response"
and walked away. Ia’. at 6-7. Wise then emailed Dawson, reprimanding her for
"unprofessional and insubordinate" behavior. Def.’s Ex. 36. Plaintiff replied to Wise
and his supervisor, claiming that Wise had falsified the story to "slander" her personal
forty-five calendar days. See 5 U.S.C. § 8118; Def.’s Ex. 47 at 4. These benefits are
administered by the Department of Labor’s Office of Workers Compensation Policy and not the
employing agency. See 5 U.S.C. § 8118.
and professional reputation. Def.’s Ex. 37. She also indicated that she was "interested in
filing an EEO complaint based on sexual harassment and gender discrimination of Mr.
Wise’s actions towards me today, this outright lie among other things." Id. The
following day, the Deputy Special Counsel responded to Dawson in support of Wise’s
actions and stated, "I assume this will not continue. If it does, we will take appropriate
actions." Def.’s Ex. 40. Plaintiff once more responded with a lengthy email accusing
Wise of a race-based conspiracy against her. Def.’s Ex. 41.
()n March 28, 2006, Dawson submitted a note from Susan White ("White"), MA,
LCPC, who stated that plaintiff was in treatment with her office and that it was "not
advisable for Ms. Dawson to return to work until such time as her condition is improved
and her associated symptoms are diminished." Def.’s Ex. 42. Curiously, plaintiff also
submitted a note from D. Singh ("Dr. Singh"), MD, stating that she was under his care
and could return to work on March 29, 2006. See Def.’s Ex. 43. On March 30, 2006,
Dawson emailed her supervisors, stating "I am out on sick leave indefinitely due to
doctor’s orders." Def.’s Ex. 54. She asked to be placed on COP status for two full weeks
in April 2006. See Def.’s Exs. 54-55. OSC challenged her request, however, because the
forty-five day period that began to run when plaintiff initially received COP benefits in
February 2006 had already expired. See Wise Aff. 6; Def.’s Ex. 52. Undaunted, Dawson
persisted in requesting COP benefits for the month of April. Wise informed her that the
medical documentation she had offered did not provide a satisfactory basis for awarding
sick leave and asked her either to provide sufficient medical documentation by April 19,
2006, or to risk being placed in AWOL status. Def.’s Ex. 46. Amazingly, plaintiff not
only failed to provide the information requested, but instead submitted a further request
for COP benefits on April 21, 2006. See Def.’s Exs. 48-49, 54. OSC again controverted
her claim, explaining that she was placed on AWOL status because her COP period had
ended and she had failed to provide adequate medical documentation for leave based on
health reasons or to designate any other leave status. See Def.’s Ex. 54 at 8-10.
1n response, Dawson changed direction and asserted that she had a disability and
was entitled to reasonable accommodation. See Def.’s Exs. 59-67. On J unc 15, 2006,
plaintiff requested as "disability accommodation" from OSC both "reassignment" and a
"maxiflex schedule." Def.’s Ex. 6l. OSC sent White a series of questions to gather
additional information regarding Dawson’s request for accommodation for the diagnosis
of mixed anxiety and depressive mood. See Def.’s Ex. 66 at 4-5. In response, White
indicated that plaintiff was suffering from work-related stress because of conflicts with
Wise. See Def’s Ex. 66 at 4. Nonetheless, in response to the third question, "In your
opinion can Ms. Dawson perform the essential functions contained in the attached job
description with or without accommodation," White checked yes next to "Without
accommodation." Ia’. 1n fact, Dawson herself sought clarification from White regarding
this response, only to report to OSC that "Ms. White stands 100% behind her responses.
As explained, #3 is probing my ability to perform my duties, which she believes 1 can
perform my duties without any adjustments to my duties." Def.’s Ex. 67 at l. On July 5,
2006, OSC denied plaintiff" s request for reasonable accommodation because the medical
documentation, i.e., the correspondence with White, did not establish that Dawson was a
qualified individual with a disability entitled to reasonable accommodation. See Def.’s
Ex. 66.
Despite the denial of her various requests for COP and for accommodations for
her alleged disability, Dawson continued to miss work. On August 22, 2006, OSC finally
concluded it had no choice but to remove her from federal service. See Def.’s Ex. 70. lt
sent her a notice indicating that she had been AWOL for the last 101 consecutive days,
that she was aware that she was AWOL, and that her prolonged absence had impaired
OSC’s operations. See ia'. at 2. Dawson responded on September 6, 2006, denying any
wrongdoing and seeking to place the blame on her supervisors. See Def.’s Ex. 71. After
a complete review, OSC removed plaintiff from federal service on October 16, 2006. See
Def.’s Ex. 73. All told, Dawson was employed at OSC for approximately sixteen
months, the last six months of which she was AWOL,
During her employment, Dawson filed five prohibited personnel practice
complaints, see Def.’s Exs. 6-14, and three EEO complaints, see Def.’s Exs. 1-5. The
EEO allegations in the instant complaint concem the subject matter of plaintiff’ s second
and third EEO complaints, filed on May 30, 2006 ("Dawson II"), and February 2, 2007
("Dawson II]"), respectively. 2 In Dawson 11, plaintiff alleged discrimination based on
sex, disability, and reprisal for prior EEO activity based on (1) Wise’s motioning with his
fingers on March 20, 2006; (2) his denial of her COP benefits on April 6, 2006; (3) his
placing her on AWOL leave status on April 6, 2006; and (4) Wise and/or his supervisor’s
rejecting her request for reassignment to a different supervisor and a maxi-flex working
2 The parties agree that plaintiff’ s first EEO complaint is not at issue in the instant action.
See Pl.’s Reply in Supp. of Mot. for Leave [#32] 3; Def.’s Opp’n to Pl.’s l\/lot. for Leave [#31] 6.
schedule, See Def.’s Ex. 2-3. In Dawson 111, plaintiff alleged discrimination based on
sex, race, disability, retaliation, and sexual orientation when OSC removed her from
federal service. See Def.’s Ex. 4-5. The OSC issued final agency decisions in Dawson 11
and Dawson 111 on May 2, 2007, and June 2l, 2007, respectively, denying all of
Dawson’s requests for relief. See Def.’s Exs. 3, 5 . Dawson filed the present civil action
on July 25, 2007, and her First Amended Complaint on February l5, 2009.
ANALYSIS
Summary judgment is appropriate when the pleadings and the record demonstrate
that "there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial
burden of demonstrating the absence of a genuine dispute of material fact, Celolex Corp.
v. Calrett, 477 U.S. 3l7, 323 (1986), and the Court draws all reasonable inferences
regarding the assertions made in a light favorable to the non-moving party, Anderson v.
Lz`berly L0bby, Inc., 477 U.S. 242, 255 (l986). The party opposing a motion for
summary judgment, however, "may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that there is a genuine issue for
trial." Ia'. at 248 (internal quotations omitted).
As an initial matter, Dawson argues that summary judgment is inappropriate
because genuine issues of material facts are in dispute. Unfortunately for plaintiff,
however, the alleged factual disputes concerning, e.g., the description of her job
responsibilities, the reasons for denying her promotion to GS-l 1, and what she
characterizes as retaliatory behavior, including the letter of counseling and the
investigation into her shooting threat, are insufficient to raise an issue for trial and
preclude summary judgment Dawson has merely presented a number of conclusory
statements unsupported by any evidence in the record, aside from her own self-serving
affidavits, mischaracterizes evidence contained in the record, and contests facts that are
simply immaterial to resolving the defendant’s motion. As such, she has not
demonstrated that "there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party" such that a grant of summary judgment is precluded. 1a’. at
249; see also Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) ("Although, as a rule,
statements made by the party opposing a motion for summary judgment must be accepted
as true for the purpose of ruling on that motion, some statements are so conclusory as to
come within an exception to that rule.").
Dawson’s further attempt to call into question the authenticity or admissibility of
much of the evidence submitted in support of the defendant’s motion must also fail. The
exhibits submitted by the defendant were part of the administrative record and include,
inter alz'a, swom affidavits based on personal knowledge and correspondence that
Dawson herself wrote, received, or otherwise submitted to OSC. See, e.g., Def.’s Exs.
25, 41. Most important, in making her argument, plaintiff fails to identify a single
document or specific portion of a document that should be stricken as inadmissible
hearsay. See Pl.’s Opp’n 22-24. She merely describes Rule 56(e) and relevant case law
and argues that the Court should strike the exhibits that do not meet the evidentiary
standard Without more, her argument to strike unspecified exhibits is unavailing.
Plaintiff’s arguments as to the merits of the summary judgment motion fare no
better. Dawson asserts violations of three statutes: the WPA, Title VII, and the
Rehabilitation Act. Notwithstanding all of her claims, however, Dawson has marshaled
no evidence that any employment decisions or interactions were related to her race, sex,
alleged disability, or protected activity. As such, for the following reasons, her claims
fail as a matter of law.
ln her first cause of action, plaintiff alleges that she was removed from federal
service because she made protected disclosures, in violation of the WPA. 1 disagree. The
disclosures that Dawson asserts were protected pertain, under a generous reading of her
pleadings, to the separation of the OSC’s Customer Service Unit in which she worked
and the Complaints Examining Unit, the hiring of a staffer that she disagreed with, and
her complaints about various management decisions regarding personnel matters related
to her. See Am. Compl. 1111 13-16, 18, 21; Pl.’s Opp’n 26-27. A disclosure is protected if
the discloser had a reasonable basis to believe what was disclosed evidenced "(i) a
violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health or
safety." 5 U.S.C. § 2302(b)(8)(A). None of Dawson’s disclosures come within this
ambit of protected disclosures because for not a single one of them could "a disinterested
observer with knowledge of the essential facts known to and readily ascertainable by the
employee reasonably conclude that the actions of the govemment evidence" one of the
conditions set forth in 5 U.S.C. § 2302(b)(8). Lachance v. Whz`te, 174 F.3d 1378, 1381
(Fed. Cir. 1999). Furthermore, the separation of the Complaints Examining Unit and the
Customer Service Unit and the hiring that Dawson objected to were matters of common
knowledge and thus could not qualify as protected disclosures, See Francisco v. Ojj‘z`ce of
Pers. Mgmt., 295 F.3d 1310, 1314 (Fed. Cir. 2002). In addition, a number of her
disclosures, particularly those relating to job-related disagreements regarding her own
personnel matters, were made directly to the alleged wrongdoer and were not protected
for that reason either. See Willis v. Dep ’t of Agrl'c., 141 F.3d 1139, 1143-44 (Fed. Cir.
1998); Horton v. Dep ’t of Nczvy, 66 F.3d 279, 282 (Fed. Cir. 1995). In short, Dawson’s
alleged disclosures simply do not constitute the type of disclosures protected under the
WPA. Accordingly, summary judgment is granted for the defendant as to the WPA
claim.
In her second cause of action, Dawson alleges that she was subjected to a hostile
work environment and disparate treatment based on her sex and race as well as retaliation
for complaining about that discrimination, in violation of Title VII. Once again,
Dawson’s allegation reflects a fundamental failure to understand the applicable Title VII
law in our Circuit. In determining whether a work environment is a hostile work
environment, courts consider "the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance." Faragher v.
Cily of Boca Raton, 524 U.S. 775, 787-88 (1998) (internal quotation marks omitted).
Indeed, the Supreme Court itself has emphasized that the "standards for judging hostility
are sufficiently demanding to ensure that Title VII does not become a general civility
code." 1a’. at 788 (internal quotation marks omitted). Here, Dawson has not alleged that
any of her supervisors or, for that matter, any of her coworkers subjected her to
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derogatory insults because of her race or gender or her complaints of discrimination.
Plaintiff merely asserts, based solely upon her own statements, that she was "subjected to
frequent harassment and hostile actions." Pl.’s Opp’n 35. In fact, the only incident that
she has alleged regarding any comments based on race or gender is a single conversation
that she overheard regarding Wise and his fiance'e, about which there is significant
dispute. See Def.’s Ex. 2 at ll; Wise Aff. 10-12; Toney Aff. 2-4. But even assuming
that the conversation unfolded as Dawson alleges, this distinct incident is not sufficiently
"extreme to amount to a change in the terms and conditions of employment." Faragher,
524 U.S. at 788. Finally, plaintiff s attempt to portray Wise as the perpetrator of a hostile
work environment by asserting that he called the police to report the shooting comments
she made is even more valueless because Wise, in fact, did not report the threat, nor did
he participate in the investigation. See Def.’s Ex. 26, Doug Stickler Aff. 3-5, Nov. 3,
2007. In the end, it is clear that no reasonable juror could interpret the facts of this case
as giving rise to a claim for a hostile work environment.
As to her disparate treatment claim, Title VII establishes two elements for an
employment discrimination claim: "(i) the plaintiff suffered an adverse employment
action (ii) because of the employee’s race, color, religion, sex, or national origin." Braa'y
v. Oyj’z`ce of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). If the employee has
suffered an adverse action and if the employer has asserted a legitimate,
nondiscriminatory reason for the action, the Court proceeds to the question of
discrimination vel non. Icl. at 494. In doing so, the Court "m\ist resolve one central
question: Has the employee produced sufficient evidence for a reasonable jury to find
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that the employer’s asserted non-discriminatory reason was not the actual reason and that
the employer intentionally discriminated against the employee on the basis of race, color,
religion, sex, or national origin?" Ia’. Dawson has not!
Here, Dawson complains of a number of employment decisions that could, in
theory, possibly rise to the level of adverse employment actions, such as the decision to
contest her requests for COP benefits, the denial of her request for a flexible work
schedule, and the decision to remove her from federal service. As to each, however, OSC
has articulated legitimate, non-discriminatory reasons for its decisions. lndeed, OSC’s
first challenge to her request for COP benefits was based on her failure to provide
sufficient evidence linking any physical or mental ailments to anything that occurred in
the workplace. See Def.’s Ex. 47 at 14. OSC controverted her second request for COP
benefits because her initial forty-five day period had expired, there was insufficient
evidence linking any injury to the workplace, and she failed to provide sufficient medical
documentations. See Def’s Ex. 54. Wise denied her request for a flexible work schedule
because of the need to staff the Customer Service Unit during fixed hours. See Wise Aff.
2. Finally, Dawson was removed from govemment service because she was AWOL for
six months and had given no indication that she intended to return to work. See Def.’s
Exs. 70-73. As with her hostile environment claim, Dawson merely relies on
circumstantial statements that she herself conj ures to allege disparate treatment and
pretext. Significantly, this is done without any reference to a specific statement regarding
her race, gender, or complaints of discrimination, and Dawson does not attempt to rebut
any of OSC’s legitimate non-discriminatory reasons. Thus, from an examination of the
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record, it is clear that plaintiff has not provided sufficient evidence for a reasonable juror
to find that OSC’s asserted non-discriminatory reasons were not the actual reasons for
any of the adverse actions. Without more, her claim of discrimination based on race or
sex must fail.
Next, with respect to her retaliation claim, Title VII also makes it unlawful "for an
employer to discriminate against any of his employees . . . because [an employee] has
opposed any practice made an unlawful employment practice by [Title V1I], or because
he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a). As
with discrimination claims, if the employer offers a legitimate, nondiscriminatory reason
for its actions, a court should proceed to the question of retaliation vel non. Jones v.
Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). "To prove retaliation, the plaintiff
generally must establish that he or she suffered (i) a materially adverse action (ii) because
he or she had brought or threatened to bring a discrimination claim." Baloch v.
Kempthorne, 550 F.3d ll91, 1198 (D.C. Cir. 2008). As already discussed, Dawson has
not provided any evidence to demonstrate that OSC’s reasons for any materially adverse
actions she may have suffered were either pretextual or unworthy of credence. Rather
than addressing OSC’s reasons for its actions, plaintiff again relies on her own
conclusory statements, none of which overcome the reasons OSC has described for the
employment decisions at issue here. Therefore, the Court must grant summary judgment
for the defendant as to the Title VII retaliation claim as well.
ln her third cause of action, Dawson alleges that she was subjected to
13
discrimination based on a failure to accommodate her disability and retaliation for
opposing that discrimination, in violation of the Rehabilitation Act. Plaintiff argues that
OSC denied her the reasonable accommodations of reassignment, presumably to a
different supervisor, and a maxi-flex schedule after she was diagnosed with "Adjustment
Disorder with Mixed Anxiety and Depressed Mood . . . secondary to conflict with her
supervisor at work." See Def.’s Ex. 59. To establish a prima facie case of discrimination
for failure to accommodate, the plaintiff bears the burden of showing: "(l) that he was an
individual who had a disability within the meaning of the statute; (2) that the employer
had notice of his disability; (3) that with reasonable accommodation he could perform the
essential functions of the position; and (4) that the employer refused to make such
accommodations." Brown v. Snow, 407 F. Supp. 2d 61, 67 (D.D.C. 2005) (emphasis
omitted). Because OSC has proffered legitimate, non-discriminatory explanations for
denying her requested accommodations, the Court applies the same analysis as in Title
VII claims. See Baloch, 550 F.3d at 1 197 (applying Braa'y ’s summary judgment analysis
to Rehabilitation Act claims).
As detailed above, the information that OSC received from Dawson and her care
providers, White and Dr. Singh, was inconsistent and did not establish that Dawson had a
disability that required reasonable accommodation. Compare Def.’s Ex. 42 (White’s
March 28, 2006 letter) with Def.’s Ex. 43 (Dr. Singh’s note). When OSC sought further
information directly from White, she indicated that Dawson could perform the duties of
her position with or without accommodation. See Def.’s Ex. 66 at 4-5. Dawson herself
confirmed that this was not a typographical or administrative error, and that White stood
14
"100% behind her responses." See Def.’s Ex. 67 at 1. Accordingly, OSC denied
plaintiffs accommodation requests because the information provided did not indicate that
she was an individual with a disability that required any sort of accommodation
guaranteed by the Rehabilitation Act. Not surprisingly, Dawson has not provided any
evidence to rebut this legitimate, non-discriminatory reason for denying her
accommodation requests. She merely points to White’s responses to OSC’s follow up
questions to establish disability discrimination, even though that evidence in fact
establishes that Dawson could perform her duties without any accommodation. Thus,
plaintiff has provided insufficient evidence for a reasonable juror to conclude that OSC
discriminated against her because of a disability. Nor can the evidence in this record
support her additional claim that she was retaliated against because she complained about
disability discrimination. Simply put, Dawson did not receive any accommodations
because there was no reason for OSC to accommodate her. Therefore, her claims for
discrimination and retaliation in violation of the Rehabilitation Act must also fail.
CONCLUSION
For all of the foregoing reasons, the Court GRANTS defendant’s Motion for
Summary Judgment and DISMISSES the action in its entirety. An Order consistent with
this decision accompanies this Memorandum Opinion.
\
flaum
RICHARD J.LLE`QT)J
United States District Judge
15