Reagan-Diaz v. Holder , 246 F. Supp. 3d 325 ( 2017 )


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  •                                  UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    SHARON-LEE REAGAN-DIAZ,
    Plaintiff,
    Civil Action No. 14-01805 (BAH)
    v.
    Chief Judge Beryl A. Howell
    JEFF SESSIONS, United States Attorney
    General, 1
    Defendant.
    MEMORANDUM OPINION
    The plaintiff, Sharon-Lee Reagan-Diaz, an employee of the Federal Bureau of
    Investigation (“FBI”), brings this suit against the Attorney General, in his official capacity,
    alleging that the FBI denied her a reasonable accommodation, and discriminated and retaliated
    against her, based on her disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C.
    § 701 et seq. First Am. Compl. (“FAC”), ¶ 4, ECF No. 12. After the plaintiff sustained a
    debilitating workplace injury in September 2011, the FBI denied her request for what she alleges
    was a reasonable accommodation of working for no more than two hours per day. She then
    received worker’s compensation during her recuperation, until her return to work, on a part-time
    basis, in May 2013. She currently remains gainfully employed on a full-time basis by the FBI.
    The plaintiff contends that, in reprisal for her equal employment opportunity (“EEO”) activity,
    she was improperly denied two awards in 2012 and 2013, during which periods she was either
    recuperating or working part-time. Pending before the Court is the defendant’s Motion to
    Dismiss and for Summary Judgment, (“Def.’s Mot.”), ECF No. 25, pursuant to Federal Rules of
    1
    The plaintiff originally named former Attorney General Eric Holder, Jr., as the defendant. Pursuant to
    Federal Rule of Civil Procedure 25(d), the Court automatically substitutes his successor as the new defendant.
    1
    Civil Procedure 12(b)(1) and 56. 2 For the reasons set forth below, the defendant’s motion is
    granted.
    I.       BACKGROUND
    A.       The Plaintiff’s 2011 Injury and Requests to Return to Work
    In 2011, the plaintiff was employed as a GS-14 Management and Program Analyst in the
    Performance Management Unit (“PMU”) of the Resource Planning Office (“RPO”) of the FBI.
    FAC ¶¶ 17, 80. The plaintiff was assigned full-time to the FBI’s “Sentinel” program, a team
    project to develop the web-based “Sentinel” application, which is “the FBI’s current electronic
    case management system.” 
    Id. ¶¶ 18-19.
    The job was demanding, in a “fast paced
    environment,” that required the plaintiff frequently to work nine or ten hour days to finish her
    work, and to attend numerous, often “impromptu,” meetings. Def.’s Mot., Ex. 4, Deposition of
    Sharon-Lee Reagan-Diaz (“Pl.’s Dep.”) at 25:2-4, 29:22-30, 31:9-13, 36:14-18, 45:9-10, 46:23-
    47:2, 48:7-20, 59:11-17, ECF No. 25-8. Additionally, much of the Sentinel team’s work was
    conducted on a classified network, and thus could not be performed outside FBI facilities. Def.’s
    Mot. Decl. of Gordon D. Bitko, Chief Information Officer, FBI ¶ 9, ECF No. 25-3.
    On September 7, 2011, while at work, the plaintiff suffered a serious injury, the details of
    which are not disclosed in the record, and was placed on medical leave. FAC ¶ 2. After her
    injury, the plaintiff was diagnosed with Reflex Sympathetic Dystrophy, or Complex Regional
    Pain Syndrome, a condition causing chronic, disabling pain in her extremities that affected the
    functioning of her circulatory and musculoskeletal systems and initially prevented her from
    engaging in routine activities such as walking or lifting objects. 
    Id. ¶ 27.
    From the date of her
    2
    The plaintiff has also filed a Motion for Leave to File a Sur-Reply in Opposition to Defendant’s Motion for
    Summary Judgment (“Pl.’s Sur-Reply”), ECF No. 39. This motion is granted to give full consideration to the
    parties’ arguments.
    2
    injury to May 9, 2013, the plaintiff received workers’ compensation payments pursuant to the
    Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. §§ 8101 et seq. Def.’s Mot., Ex. 1
    at FBI 1206, ECF No. 25-5.
    Several months after the injury, in January 2012, the plaintiff contacted RPO about
    returning to work and requested permission to telecommute. FAC ¶ 30. In the months that
    followed, the plaintiff and various FBI personnel engaged in a series of communications
    regarding the processes and requirements for her return to work. Initially, some supervisors
    suggested to the plaintiff that they merely had to grant her a “reasonable accommodation.” For
    example, when the plaintiff first requested to return to work in January 2012, her direct
    supervisor, Gordon Bitko, told her that she needed to be in the office for more than just two
    hours, proposing a “reasonable accommodation” that the plaintiff work four hours in the office
    per day, with the rest completed at home. 
    Id. The situation
    was soon clarified, however, that the plaintiff could not receive a
    “reasonable accommodation” while still receiving worker’s compensation payments. On
    January 11, 2012, Elizabeth Stoddard, a Supervisor in RPO, Def.’s Mot., Ex. 6, Deposition of
    Elizabeth Stoddard, at 10:16-18, ECF No. 25-10, explained to Bitko that “[e]mployees on
    Worker’s Compensation do not go through the Reasonable Accommodation Process. Instead
    they go through a process that is facilitated by [the Worker’s Compensation Unit (“WCU”)]
    called Alternative Work Assignments (“AWA”),” Def.’s Mot., Ex. 14 at FBI 1671, ECF No. 25-
    18; see also Pl.’s Corrected Opp’n Def.’s Mot. (“Pl.’s Opp’n”) at 4, ECF No. 34 (“The FBI
    decided that Plaintiff would not go through the ‘Reasonable Accommodation Process,’ but
    instead would proceed under the Alterative Work Assignment (‘AWA’) process of workers’
    compensation directed by Michael Huff.” (citations omitted)). Under the AWA process, Michael
    3
    Huff, the Unit Chief of the FBI’s WCU, would have to draft an AWA “job offer” for the plaintiff
    and submit it to the Department of Labor (“DOL”) for approval. 3 Pl.’s Opp’n at 4 (citing Pl.’s
    Opp’n, Ex. 6, Deposition of Michael Huff, Unit Chief, Workplace Injury Liaison Unit, FBI
    (“Huff Dep.”), at 159-61, ECF No. 31-6). As explained by Stoddard, the AWA process is
    similar to the “reasonable accommodation” process, but the plaintiff would be compensated by
    DOL instead of the FBI. Def.’s Mot., Ex. 14 at FBI 1671. As part of this process, the plaintiff
    had to communicate to WCU about the job activities she could and could not perform given her
    medical condition. 
    Id. On March
    22, 2012, Stoddard advised the plaintiff via email that she could start working
    once the RPO had completed the AWA process in coordination with WCU, stating that “[t]here
    are several projects that we are eager to get you engaged in as soon as you’re able and we’ve
    complete [sic] the appropriate processes.” Def.’s Mot., Ex. 15 at FBI 2206-07, ECF No. 25-19;
    see also Pl.’s Opp’n, Ex. 26 at FBI 2257, ECF No. 31-26. Stoddard listed a number of job duties
    that they were hoping the plaintiff could “support.” Pl.’s Opp’n, Ex. 26 at FBI 2257. Stoddard
    asked the plaintiff in the March 22 email to confirm the work activities she could perform given
    her current medical condition, telling her that “[t]o be clear, my understanding is that [Huff],
    [Bitko], and I all need positive confirmation from you that you feel comfortable in performing
    these roles; otherwise we would want to re-evaluate them such that you are comfortable.” Def.’s
    Mot., Ex. 15 at FBI 2207. One week later, on March 29, 2012, the plaintiff responded, but stated
    only that she was having email problems, asked to have messages sent to another email address,
    3
    In his deposition, Huff explains that his unit changed its name from the “Workmans’ Compensation Office”
    and “Workers’ Comp Unit” to the “Workplace Injury Liaison Unit.” Huff Dep. at 9:9-14. For ease of reference,
    and because the parties refer to the office as the “Workers’ Compensation Unit,” the office is referred to in this
    opinion as the “Workers’ Compensation Unit” or “WCU.”
    4
    and explained that she would “proceed to review the work duties” and would let Stoddard know
    if she had any questions. 
    Id. at FBI
    2206.
    Several weeks later, on April 19, 2012, RPO Assistant Director David Schlendorf
    informed the plaintiff that they were still “waiting to hear back from [the plaintiff] about . . . the
    work duties.” 
    Id. at FBI
    2206. The plaintiff responded that she had, in fact, replied to
    Stoddard’s March 22 email “regarding the work duties,” stating that “[a]t the time [Stoddard]
    sent me the e-mail with the work duties I din’t [sic] have any questions” and that “I am sure once
    we have an oficial [sic] starting work date we will need to regroup and see if these work duties
    need to be updated.” 
    Id. at FBI
    2205-06. Stoddard and Huff then expressed confusion to one
    another, as neither of them had seen a response from the plaintiff specifically regarding the job
    duties. 
    Id. at 2205.
    Stoddard wrote to Huff, stating that “[t]he only response I saw to the work
    duties” was the plaintiff’s March 29 email and that to Stoddard’s knowledge, the plaintiff had
    “not positively confirmed that the work duties were okay and appropriate for her medical
    circumstances, as requested.” 
    Id. Five days
    later, Huff wrote to Schlendorf, telling him that “[t]here is nothing more
    [Schlendorf] or anyone else in RPO needs to do” and that they were still “waiting on [the
    plaintiff] to provide a response to [Stoddard’s] email and provide [Huff’s] office with updated
    medical [information] from her doctor and a completed safety check list.” Def.’s Mot., Ex. 16 at
    FBI 1741, ECF No. 25-20. Huff explained that “[o]nce these three issues are resolved, then
    [they could] proceed with making a light duty job offer to [the plaintiff].” 
    Id. Yet, no
    evidence
    is in the record that the plaintiff ever substantively responded to the March 22 email from
    Stoddard confirming the work duties she was comfortable performing.
    5
    On May 18, 2012, however, the plaintiff again wrote in an email to Huff that she had
    “been cleared to work 2 hours a day 5 days a week close to home on a trial basis.” Def.’s Mot.,
    Ex. 18 at FBI 1838, ECF No. 25-22. Huff responded by referring to an apparent oral
    conversation the plaintiff had with Huff two weeks earlier on May 3, 2012. 
    Id. According to
    Huff’s email, in this conversation, Huff and the plaintiff discussed that they would have to wait
    until the plaintiff’s doctor cleared her to work for four hours per day and that the plaintiff had
    stopped having, in her terms, “bad days.” 4 
    Id. at FBI
    1838; FAC ¶¶ 43-44. The plaintiff
    responded to Huff’s email by reiterating her desire to return to work “on a gradual basis.” Def.’s
    Mot., Ex. 18 at FBI 1837. Huff replied that he had discussed the matter with RPO leadership,
    including Schlendorf, resulting in the “unanimous” decision that the plaintiff “need[ed] to
    concentrate on recovery efforts regarding [her] medical condition,” noting, in particular, that the
    plaintiff was still having “bad days” when she could not “function well.” 
    Id. at FBI
    1836. Huff
    explained that the plaintiff’s “bad days” issue is “not taken into account within [DOL’s AWA]
    process,” and had the “potential to create a great deal of stress on [the plaintiff] as it could lead to
    a denial of benefits if [she] [could not] continue to work the formalized return to work program
    under the [DOL] rules and regulations.” 
    Id. Huff advised
    that everyone “agreed that [the
    plaintiff] need[ed] to continue [her] recovery program and the most important issue [was her]
    long term health and well being” and that “[c]oming back to work at this point could jeopardize
    all the hard work and positive gains [she] ha[d] made thus far.” 
    Id. Huff concluded
    that once the
    plaintiff’s doctor had cleared her to work for at least four hours per day and her “issue with bad
    days and good days ha[d] been resolved as much as possible,” WCU would “be happy to develop
    an alternative work assignment to meet [her] medical restrictions.” 
    Id. Huff then
    explained to
    4
    According to Huff, on these “bad days,” the plaintiff told him she was “not able to get out of bed and
    work.” Def.’s Mot., Ex. 13 at FBI 2919, ECF No. 25-17; see also 
    id., Ex. 19
    at FBI 2250-51.
    6
    Bitko that WCU could not make a “suitable offer for . . . work as [the plaintiff] [could] only
    work 2 hours per day, and she, by her own admittance, [did] not know when she [would] have
    good and bad days.” 
    Id. at 1835.
    On July 16, 2012, Huff wrote to Schlendorf, Stoddard, and Bitko, telling them that he had
    spoken to the plaintiff about Stoddard’s March 22 email on April 27 and May 3. Def.’s Mot.,
    Ex. 19 at FBI 2250-51, ECF No. 25-23. According to Huff, the plaintiff stated that she could not
    “comment [sic] to performing any of the duties in the March 22, 2012, email as she does not feel
    comfortable trying to make deadlines with her work,” since she has “good days and bad days,
    [when] she is not able to get out of bed and work on the bad days,” and, consequently, she did
    not make “a commitment to work specific job duties as outlined in the March 22, 2012 e-mail.”
    
    Id. at FBI
    2250. Huff further explained that he could not make an AWA job offer based on
    “good days and bad days,” and that in order for him to write an offer, he had to have a “list of
    duties that [the plaintiff would] be performing.” 
    Id. Since Huff
    could not make a job offer under
    FECA, Huff referred the plaintiff to Lynn Hoffman at FBI’s [Office of Equal Employment
    Opportunity Affair’s (“OEEOA”)] Office of Reasonable Accommodation.” 
    Id. at 2250-51.
    Rodney Yelder, a Program Manager at OEEOA, however, refused to adjudicate the
    plaintiff’s request for a reasonable accommodation while she was still on workers’
    compensation. Def.’s Mot., Ex. 20, at FBI 1583, ECF No. 25-24. On August 13, 2012, Yelder
    informed the plaintiff that “[b]ased on the fact that [she was] currently on worker’s comp. with
    no work return date, a reasonable accommodation determination c[ould not] be made on [her]
    case at th[at] time.” 
    Id. On August
    17, Yelder also told Huff that he would explain to the
    plaintiff that an individual would have to meet the requirements of “[Huff’s] program” before
    OEEOA could “provide a reasonable accommodation” and that “[i]t is not reasonable to provide
    7
    an accommodation to an employee on workers comp to come back to work when the worker’s
    comp unit’s requirements have not been met.” Def.’s Mot., Ex. 21, at FBI 2269, ECF No. 25-25.
    On September 28, 2012, the plaintiff contacted Huff again, claiming that DOL’s Claims
    Examiner in her case, Shanell Davis, would “approve” her request to “return to work 2 hours per
    day, 5 days per week.” Def.’s Mot., Ex. 22, at FBI 2314-15, ECF No. 25-26. On October 5,
    2012, however, Huff clarified in an email to David Wade, the Chief Medical Officer at the FBI,
    that he spoke to a Supervisory Claims Examiner at DOL, Stephanie Stone, who told him that
    Davis had, in fact, not approved the plaintiff’s request and instead had told the plaintiff “that
    DOL does not approve 2 hour job offers as suitable.” 
    Id. at 2313.
    Wade wrote to the plaintiff,
    explaining that he had discovered that DOL had required the plaintiff to undergo a Second
    Opinion Examination in May 2012. Pl.’s Opp’n, Ex. 18 at FBI 2330, ECF No. 31-18.
    According to Wade, the Second Opinion Examiner concluded that the plaintiff could work six
    hours per day. 
    Id. at FBI
    2330. Accordingly, because of the conflict between the plaintiff’s
    attending physician and the second opinion examiner, a “third evaluation [was] needed to resolve
    the conflicting opinions.” 
    Id. The record
    is unclear whether a third medical evaluation was ever
    scheduled and completed.
    Six months later, on May 21, 2013, after the plaintiff’s workers’ compensation payments
    had ceased, the FBI’s Reasonable Accommodations Committee (“RAC”) convened and
    recommended a part-time schedule of 20 hours per week as a reasonable accommodation for the
    plaintiff. Def.’s Mot., Ex. 2 at FBI 1462, ECF No. 25-6. The plaintiff first reported back to
    work on at FBI Headquarters on May 20, 2013, accepting the RAC’s part-time schedule as
    offered on May 24. Def.’s Ans. Pl.’s Am. Compl. (“Def.’s Ans.”) ¶ 71, ECF No. 16; Def.’s
    Mot., Ex. 3 at FBI 1522.
    8
    Over the next several weeks, the plaintiff repeatedly requested permission to work from
    an office closer to home, FAC ¶¶ 74-75, and on July 16, after a June 27 incident during a fire
    drill where the plaintiff fainted and was taken to the FBI’s Health Services Unit, the FBI
    determined that she was unable to meet work attendance requirements at FBI Headquarters, 
    Id. ¶ 76;
    Def.’s Ans. ¶ 78. On August 21, 2013, the plaintiff began working in the Chantilly,
    Virginia, office of the FBI Cyber Division, and by January 2014 her work was full-time. Def.’s
    Ans. ¶ 80.
    B.      The 2012 Director’s Award and 2013 Attorney General’s Award
    While the plaintiff was still on leave, some of her coworkers on the Sentinel project team
    were selected as recipients of the 2012 Director’s Award for Outstanding Information
    Management. FAC ¶ 55. Although the plaintiff alleges that she was on the initial list of
    employees considered for the award, she did not receive it. 
    Id. ¶¶ 55-57.
    Robert Blake, a
    Special Assistant who managed the Sentinel project, 
    Id. ¶ 34,
    selected the initial slate of
    nominees from the Sentinel project for the award, see Def.’s Mot., Ex. 26, Sworn Statement of
    Robert Blake, Special Assistant, Information Technology Management Division, FBI (“Blake
    Statement”) at FBI 61-64, ECF No. 25-30. According to Blake, he did not nominate the plaintiff
    for the 2012 Director’s Award because he did not feel that the plaintiff’s contribution to the team
    was critical to the success of the project, noting that, in his view, the plaintiff was “mainly a
    conduit for the flow of information between the team and one entity,” and “[s]he was not one of
    the managers overseeing the details of the project or one of the designers or programmers who
    created Sentinel.” 
    Id. at 64.
    Moreover, Blake cited the fact that the plaintiff’s most recent
    contribution to the team was in September 2011, nearly a year before the project was completed
    in July 2012. 
    Id. Moreover, Blake
    understood that “[g]roup nominations [for the award] are
    9
    limited to 15 nominees.” 
    Id. at 63.
    Jeffrey Johnson, the Assistant Director of the Information
    Technology Management Division at the FBI, who made the final decision about nominees for
    the award, agreed with Blake. See Def.’s Mot., Ex. 23 (“Blake Dep.”) at 30:14-15, ECF No. 25-
    27, Ex. 27, Sworn Statement of Jeffrey C. Johnson, Assistant Director, Information Technology
    Management Division, FBI (“Johnson Statement”), at FBI 58-59, ECF No. 25-31. Shortly
    before filing this action, in October 2014, the plaintiff also learned that a group of her co-workers
    had received another award, the 2013 Attorney General’s Award for Excellence in Information
    Technology (“AG’s Award”). FAC ¶ 66.
    C.      Procedural History
    Beginning as early as February 2012, when the plaintiff requested informal counseling
    when her first request to return to work was denied, and continuing until she filed this action, the
    plaintiff had several interactions with the FBI’s OEEOA. FAC ¶¶ 11-16. On April 13, 2012, she
    filed her first formal EEO complaint, 
    id. ¶ 37,
    alleging discrimination and retaliation because of
    the FBI’s denial of her request to return to work for two hours per day, see Def.’s Mot., Decl. of
    Jessika Rovell, Supervisory Attorney-Advisor, Unit Chief, Complaint’s Processing Unit,
    OEEOA, FBI (“Rovell Decl.”), at ¶ 4, ECF No. 25-4. On October 25, 2012, the plaintiff filed
    her second EEO complaint, alleging discrimination as well as retaliation for prior EEO activity
    when she became aware that she did not receive the 2012 Director’s Award. 
    Id. ¶ 5.
    The FBI
    completed two Reports of Investigations, which were received by the plaintiff on September 13,
    2012 and April 11, 2013, respectively. FAC ¶ 11; see also Def.’s Reply Supp. Mot. Summ. J. &
    Mot. Dismiss (“Def.’s Reply”), Ex. 44 (excerpts of the second administrative Report of
    Investigation), ECF No. 38-9. She subsequently withdrew her hearing requests on July 31, 2014,
    FAC ¶ 13, and her cases were dismissed, Rovell Decl. ¶¶ 6-7.
    10
    Following the OEEOA’s final action of dismissal for both matters, the plaintiff, on
    August 28, 2014, filed the instant lawsuit, alleging claims of failure to provide a reasonable
    accommodation, disparate treatment because of a disability, and a claim of retaliation because of
    protected activity, see FAC ¶ 4, and an amended complaint in March 2015, to add a third claim
    of retaliation based on her exclusion, in the Fall of 2014, from the nominee list for the 2013
    Attorney General’s Award, see Pl.’s Opp’n at 44; FAC ¶ 137. Initially, the Court issued a
    Scheduling Order closing discovery by October 9, 2015. See Minute Order, June 8, 2015. After
    two extensions were granted, discovery closed on April 8, 2016. Minute Order, December 29,
    2015. Two months later, on June 20, 2016, the defendant filed the instant motion.
    II.    LEGAL STANDARDS
    A.        Motion for Summary Judgment
    Federal Rule of Civil Procedure Rule 56 provides that summary judgment shall be
    granted “if the movant shows that there is no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party
    bears the burden of demonstrating the “absence of a genuine issue of material fact” in dispute,
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323 (1986), while the nonmoving party must present
    specific facts supported by materials in the record that would be admissible at trial and that could
    enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty
    Lobby”), 
    477 U.S. 242
    , 248 (1986); Allen v. Johnson, 
    795 F.3d 34
    , 38 (D.C. Cir. 2015) (noting
    that, on summary judgment, appropriate inquiry is “whether, on the evidence so viewed, ‘a
    reasonable jury could return a verdict for the nonmoving party’” (quoting Liberty 
    Lobby, 477 U.S. at 248
    )).
    11
    "Evaluating whether evidence offered at summary judgment is sufficient to send a case to
    the jury is as much art as science." Estate of Parsons v. Palestinian Auth., 
    651 F.3d 118
    , 123
    (D.C. Cir. 2011). This evaluation is guided by the related principles that "courts may not resolve
    genuine disputes of fact in favor of the party seeking summary judgment," Tolan v. Cotton, 
    134 S. Ct. 1861
    , 1866 (2014) (per curiam), and "[t]he evidence of the nonmovant is to be believed,
    and all justifiable inferences are to be drawn in his favor," 
    id. at 1863
    (quoting Liberty 
    Lobby, 477 U.S. at 255
    (alteration in original)). Courts must avoid making "credibility determinations
    or weigh[ing] the evidence," since "[c]redibility determinations, the weighing of the evidence,
    and the drawing of legitimate inferences from the facts are jury functions, not those of a judge."
    Reeves v. Sanderson Plumbing Products, Inc., 
    530 U.S. 133
    , 150-51 (2000) (internal quotation
    marks omitted); see also Burley v. Nat'l Passenger Rail Corp., 
    801 F.3d 290
    , 295-96 (D.C. Cir.
    2015). In addition, for a factual dispute to be "genuine," the nonmoving party must establish
    more than "[t]he mere existence of a scintilla of evidence in support of [its] position," Liberty
    
    Lobby, 477 U.S. at 252
    , and cannot rely on "mere allegations" or conclusory statements, see
    Equal Rights Ctr. v. Post Props, Inc., 
    633 F.3d 1136
    , 1141 n.3 (D.C. Cir. 2011); Veitch v.
    England, 
    471 F.3d 124
    , 134 (D.C. Cir. 2006). “If the evidence is merely colorable, or is not
    significantly probative, summary judgment may be granted.” Liberty 
    Lobby, 477 U.S. at 249
    –50
    (citations omitted). Moreover, “a complete failure of proof concerning an essential element of
    the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v.
    
    Catrett, 477 U.S. at 323
    . In that situation, “[t]he moving party is ‘entitled to a judgment as a
    matter of law’ because the nonmoving party has failed to make a sufficient showing on an
    essential element of her case with respect to which she has the burden of proof.” 
    Id. The Court
    12
    is only required to consider the materials explicitly cited by the parties, but may on its own
    accord consider "other materials in the record." FED. R. CIV. P. 56(c)(3).
    B.      Rule 12(b)(1)
    To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the
    plaintiff bears the burden of demonstrating the court's subject-matter jurisdiction over his claim.
    Arpaio v. Obama, 
    797 F.3d 11
    , 19 (D.C. Cir. 2015). “‘Federal courts are courts of limited
    jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” Gunn v.
    Minton, 
    133 S. Ct. 1059
    , 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 
    511 U.S. 375
    , 377 (1994)). Indeed, federal courts are “forbidden . . . from acting beyond our
    authority,” NetworkIP, LLC v. FCC, 
    548 F.3d 116
    , 120 (D.C. Cir. 2008), and, therefore, have
    “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist for
    us to hear each dispute,’” James Madison Ltd. ex rel. Hecht v. Ludwig, 
    82 F.3d 1085
    , 1092 (D.C.
    Cir. 1996) (quoting Herbert v. Nat'l Acad. of Scis., 
    974 F.2d 192
    , 196 (D.C. Cir. 1992)). Absent
    subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y & H Corp., 
    546 U.S. 500
    , 506–07 (2006); FED. R. CIV. P. 12(h)(3).
    When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true
    all uncontroverted material factual allegations contained in the complaint and “‘construe the
    complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the
    facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v.
    FDIC, 
    642 F.3d 1137
    , 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 
    394 F.3d 970
    , 972
    (D.C. Cir. 2005)). When necessary, the court may “‘undertake an independent investigation to
    assure itself of its own subject matter jurisdiction,’” Settles v. U.S. Parole Comm'n, 
    429 F.3d 1098
    , 1107 (D.C. Cir. 2005) (quoting Haase v. Sessions, 
    835 F.2d 902
    , 908 (D.C. Cir. 1987)),
    13
    and consider facts developed in the record beyond the complaint, id.; see also Herbert v. Nat'l
    Acad. of Scis., 
    974 F.2d 192
    , 197 (D.C. Cir. 1992) (in disposing of motion to dismiss for lack of
    subject matter jurisdiction, “where necessary, the court may consider the complaint
    supplemented by undisputed facts evidenced in the record, or the complaint supplemented by
    undisputed facts plus the court's resolution of disputed facts”). To do so, “the district court may
    consider materials outside the pleadings.” Jerome Stevens Pharm., Inc. v. FDA, 
    402 F.3d 1249
    ,
    1253 (D.C. Cir. 2005); see also Belhas v. Ya'alon, 
    515 F.3d 1279
    , 1281 (D.C. Cir. 2008)
    (examining materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for
    lack of subject matter jurisdiction); Coal. for Underground Expansion v. Mineta, 
    333 F.3d 193
    ,
    198 (D.C. Cir. 2003) (noting that courts may consider materials outside the pleadings in ruling
    on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).
    III.   DISCUSSION
    The plaintiff asserts three claims: in Count I, she claims failure to accommodate, in
    violation of the Rehabilitation Act, FAC ¶¶ 81-100; in Count II, she alleges disparate treatment
    based on the defendant’s refusal to allow her to return to work on a reduced schedule of two
    hours per day, 
    id. ¶¶ 101-13;
    and in Count III, she alleges retaliation stemming from the FBI not
    considering her for awards in 2012 and 2013, 
    id. ¶¶ 114-40.
    Each of the plaintiff’s claims is
    considered seriatim below.
    A.      Count I: Failure to Accommodate
    The plaintiff alleges that the FBI violated the Rehabilitation Act by failing to provide a
    reasonable accommodation for her disability. The defendant responds by primarily arguing that
    the plaintiff could not have performed the essential functions of her position with or without the
    reasonable accommodations requested by the plaintiff. Moreover, the defendant also notes that
    14
    the FBI could not have provided a reasonable accommodation for the plaintiff until she returned
    to work, and “[t]he reason Plaintiff did not return to work sooner is because the Department of
    Labor would not approve a two-hour per day work schedule,” and the “Plaintiff had not
    confirmed the job duties she would perform upon her return.” Def.’s Statement of Undisputed
    Material Facts (“Def.’s SUMF”) ¶ 30, ECF No. 25 (citing Def.’s Mot., Ex. 14 at FBI 1671, Ex.
    15 at FBI 2206-07, Ex. 16 at FBI 1741, Ex. 17 at FBI 1795, Ex. 18 at FBI 1838, Ex. 19 at FBI
    2250-51, Ex. 20 at FBI 1583, Ex. 21 at FBI 2269, Ex. 22 at FBI 2313). The legal standard for a
    failure to accommodate claim is discussed first, before turning to an assessment of the plaintiff’s
    claim.
    1.     Legal Standard
    The Rehabilitation Act prohibits federal agencies from discriminating against disabled
    individuals and also requires agencies to “mak[e] reasonable accommodations to the known
    physical or mental limitations of an otherwise qualified individual with a disability who is an
    applicant or employee, unless [the employer] can demonstrate that the accommodation would
    impose an undue hardship.” Adams v. Rice, 
    531 F.3d 936
    , 942–43 (D.C. Cir. 2008) (quoting 42
    U.S.C. § 12112(b)(5)(A)) (alterations in original); see also Taylor v. Rice, 
    451 F.3d 898
    , 905
    (D.C. Cir. 2006); Klute v. Shinseki, 
    840 F. Supp. 2d 209
    , 215 (D.D.C. 2012) (quoting Nurriddin
    v. Bolden, 
    674 F. Supp. 2d 64
    , 82 (D.D.C. 2009)). To determine an appropriate reasonable
    accommodation, the agency should “initiate an informal, interactive process with the qualified
    individual with a disability in need of accommodation.” 29 C.F.R. § 1630.2(o)(3). “‘[A]n
    employer is not required to provide an employee that accommodation [s]he requests or prefers,
    the employer need only provide some reasonable accommodation.’” Aka v. Wash. Hosp. Ctr.,
    
    156 F.3d 1284
    , 1305 (D.C. Cir. 1998) (en banc)).
    15
    To survive summary judgment on a failure to accommodate claim, a plaintiff must “come
    forward with sufficient evidence to allow a reasonable jury to conclude that” she meets four
    elements: “(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 v. Vilsack, 
    763 F.3d 1
    , 9 (D.C. Cir. 2014) (internal
    citations omitted); Doak v. Johnson, 
    798 F.3d 1096
    , 1105 (D.C. Cir. 2015); Smith v. Lynch, 
    106 F. Supp. 3d 20
    , 39 (D.D.C. 2015).
    2.         Analysis
    The record is undisputed the plaintiff was disabled during the pertinent time period and
    that the FBI had notice of her disability, thereby establishing the first two elements of a prima
    facie case for her failure to accommodate claim. See Def.’s Mem. Supp. Mot. Summ. J. (“Def.’s
    Mem.”) at 11, ECF No. 25. The defendant does dispute, however, that the plaintiff could have
    performed the “essential functions of her job with or without reasonable accommodation.” See
    generally 
    id. at 11-28.
    “The term essential functions means the fundamental job duties of the employment
    position the individual with a disability holds or desires;” it “does not include the marginal
    functions of the position.” 29 C.F.R. § 1630.2(n). “Evidence of whether a particular function is
    essential includes” several aspects: “(i) The employer’s judgment as to which functions are
    essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for
    the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences
    of not requiring the incumbent to perform the function;” as well as “[t]he terms of a collective
    bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The
    current work experience of incumbents in similar jobs.” 29 C.F.R. § 1630.2(n)(3).
    16
    In this case, the defendant has presented essentially unrebutted evidence that the plaintiff
    would not be able to fulfill the essential functions of the position by only working two hours per
    day. The plaintiff concedes as much, testifying that “I’m not saying that I would have been able
    to do all of the work in a two-hour in-office schedule, but I would have been able to perform any
    and all duties that I performed on any given project during those two hours.” Pl.’s Dep. at
    103:16-20. In particular, two “essential functions” of the plaintiff’s position stand out. First, the
    volume of work associated with the plaintiff’s job duties required that she work essentially full
    time. See Def.’s Mem. at 14-15. The plaintiff testified that she was required to work at least an
    eight-hour per day schedule, Pl.’s Dep. at 122:24-123:3, and that she often worked for nine or ten
    hours per day, 
    id. at 25:2-4,
    29:22-30:6, 31:9-13; see also Def.’s Mot., Ex. 5, Pl.’s Ans. Def.’s
    First Interrogatories, at 7, ECF No. 25-9 (“I worked full time for Sentinel . . . and I often put in
    nine or even ten-hour days.”).
    A second essential function of the plaintiff’s job was her ability to participate in
    “impromptu” meetings, which often involved classified information requiring that she be present
    in person. The plaintiff concedes that meetings were an “important part” of her job, see Pl.’s
    Dep. at 59:11-17, and that she was constantly involved in meetings as an important part of her
    job, see 
    id. at 36:15-18,
    45:9-10 (“we would have impromptu meetings”), 46:23-47:2. The
    plaintiff also explained that her permanent position in the PMU required a commitment to “work
    collaboratively with the team,” and that “[e]verything PMU does is time sensitive and is driven
    by external and internal deadlines,” and that her colleagues “meet a lot.” 
    Id. at 95:1-7,
    96:20-
    97:11, 117:18-25.
    Given the full-time and meeting-heavy nature of the plaintiff’s position, which required
    her in-person presence due to classified information, a maximum two-hours-per-day work
    17
    schedule does not appear to be enough time to satisfy just the meeting requirements of the job, let
    alone any of the plaintiff’s other responsibilities. Indeed, the plaintiff admits that just one
    “formal meeting,” which frequently occurred, would itself last from one to two hours, 
    id. at 53:18-23,
    and she concedes she “would not be able to attend all the meetings while [she] was in
    the office for just two hours,” 
    id. at 106:4-10.
    The only rebuttal offered by the plaintiff is to
    suggest that, for meetings outside her proposed two-hour work window, she could “dial into
    those meetings.” 
    Id. at 106:10-16;
    Pl.’s Opp’n at 23-24. Yet, the plaintiff does not dispute that
    this solution would not have been viable for classified meetings, Pl.’s Dep. at 106:10-15,
    including “system security meetings,” which she describes as “impromptu” and occurring
    “forever, constantly, and continuously,” 
    id. at 47:19-48:20.
    Thus, the plaintiff effectively admits she could not perform the essential functions of her
    position by working only two hours per day. Nevertheless, the plaintiff argues the defendant
    erred by “analyzing whether [the plaintiff] could do the essential functions of her job before she
    obtained the accommodations,” namely working two hours per day, and asserts that “[o]nce she
    was given a chance to build up her strength, she would be able to handle more projects, [and] go
    to more meetings.” Pl.’s Opp’n at 18-19 (emphasis omitted). In other words, the plaintiff
    appears to argue that she sought to return to work “gradually,” and eventually, at some point, the
    plaintiff would have been able to perform the essential functions of her position. See, e.g., FAC
    ¶ 2; Pl.’s Opp’n at 2, 9, 18 (explaining that she could eventually return to full-time work “[o]nce
    she was given a chance to build up her strength” and that “Plaintiff was only seeking a two-hour
    day schedule as a stepping stone to a full return to work.”).
    The plaintiff’s argument is not persuasive for at least two reasons. First, as the defendant
    points out, by asserting that she would slowly and gradually be able to perform the functions of
    18
    her job, “[o]nce she was given a chance to build up her strength,” the plaintiff admits she could
    not perform the essential functions of her job at the time she requested the accommodation. See
    Def.’s Reply at 3, ECF No. 38.
    Second, and relatedly, the law is clear that a plaintiff alleging a failure to accommodate a
    disability “must establish her ability to perform” the essential functions of her job “at the time
    the employer denied her request for accommodation.” Minter v. District of Columbia, 
    809 F.3d 66
    , 70 (D.C. Cir. 2015); see also Basden v. Prof’l Transp., Inc., 
    714 F.3d 1034
    , 1037 (7th Cir.
    2013) (concluding that a plaintiff’s “ability to come to work, or to otherwise perform the
    essential functions of her job, is examined as of the time of the adverse employment decision at
    issue”); Wood v. Green, 
    323 F.3d 1309
    , 1314 (11th Cir. 2003) (holding that a plaintiff was not
    qualified where he could not perform essential functions in the “present or in the immediate
    future”); 29 C.F.R. § 1630.2(m) app. (EEOC Interp. Guidance) (“The determination of whether
    an individual with a disability is qualified . . . should be based on the capabilities of the
    individual . . . at the time of the employment decision.”)). Thus, as much as the plaintiff would
    have liked to use a two-hour work day as a “stepping stone” to return gradually to full-time
    work, this simply does not meet the requirement of being able to perform the essential functions
    at the time of the requested accommodation, rather than at some later date. The Rehabilitation
    Act’s provisions “contain no reference to an individual’s future ability to perform the essential
    functions of his position.” Myers v. Hose, 
    50 F.3d 278
    , 283 (4th Cir. 1995). “To the contrary,
    they are formulated entirely in the present tense, framing the precise issue as whether an
    individual ‘can’ (not ‘will be able to’) perform the job with reasonable accommodation.” Id.; see
    42 U.S.C. § 12111(8) (stating that a reasonable accommodation claim adheres where, “with or
    19
    without reasonable accommodation,” a plaintiff “can perform the essential functions of the
    employment position that such individual holds or desires” (emphasis added)).
    Simply put, an agency is not legally bound by the Rehabilitation Act to provide any
    injured employee the opportunity to work a two-hour per day schedule, on an indefinite basis, on
    the chance that the employee might, at some point, gradually improve and be able to perform her
    position’s essential job functions. The law does not reach so far. As they make clear, the
    plaintiff never gave a timeframe for when she might be able to work at least four hours per day,
    making it difficult for her to work a consistent and predictable work schedule. See Frazier-White
    v. Gee, 
    818 F.3d 1249
    , 1256 (11th Cir. 2016) (where the “Plaintiff did not suggest a time frame
    for when she would be able to resume her full-duty position, and she later admitted . . . that she
    did not know how much time she needed or whether any amount of time would be sufficient,”
    the “Plaintiff’s request for an indefinite extension of light-duty status was unreasonable as a
    matter of law.”); Browning v. Liberty Mut. Ins. Co., 
    178 F.3d 1043
    , 1048 (8th Cir. 1999)
    (holding that “[t]he fact that [the plaintiff] continued to heal, gain strength and . . . once again
    becom[e] a qualified individual who could perform the essential functions of the job, does not
    obviate the fact that she was not a qualified individual at the time” of termination); Gantt v.
    Wilson Sporting Goods Co., 
    143 F.3d 1042
    , 1047 (6th Cir. 1998) (“Reasonable accommodation
    does not require the employer to wait indefinitely for an employee’s medical condition to be
    corrected.”).
    The D.C. Circuit’s recent decision in Doak v. Johnson is illustrative of this point. In
    Doak, the D.C. Circuit affirmed the grant of summary judgment to an agency that rejected an
    injured plaintiff’s request to telecommute, with a two-hour start and end time “for a month or
    two.” 
    Doak, 798 F.3d at 1101
    . After denying this request, the agency subsequently terminated
    20
    the plaintiff for her inability to perform the essential functions of her job. 
    Id. at 1101-02.
    The
    Circuit explained that “even with her desired schedule accommodation, [the plaintiff] would
    have been unable to perform an essential function of her job: being present in the office to
    participate in interactive, on-site meetings during normal business hours and on a regular basis.”
    
    Id. at 1105.
    Both the Doak plaintiff and the plaintiff here had positions that required
    “[s]pontaneous meetings with various personnel” that “occur[ed] frequently” and “the pace of
    work could sometimes be too fast for anything other than on-site presence.” 
    Id. at 1106
    (internal
    quotation marks omitted). Like the Doak plaintiff, the plaintiff in the instant case had to “be
    present for interactive meetings during normal business hours” and the accommodations
    requested “would not have enabled her to perform that function.” 
    Doak, 798 F.3d at 1106-07
    ;
    see also 
    Minter, 809 F.3d at 69-70
    (holding that a claim for failure to accommodate could only
    be made by one who is a qualified individual, i.e. able to perform the job’s essential functions);
    Carr v. Reno, 
    23 F.3d 525
    , 529–530 (D.C. Cir. 1994) (holding that an employer was entitled to
    summary judgment where a plaintiff’s position required physical presence to pick up and code
    papers daily and her requested accommodation would not have enabled her to perform that
    function); Samper v. Providence St. Vincent Med. Ctr., 
    675 F.3d 1233
    , 1238 (9th Cir. 2012)
    (holding that an employer was entitled to summary judgment where on-site attendance was an
    essential function for a nurse and the plaintiff’s requested schedule would not have enabled her
    to perform that function sufficiently).
    The plaintiff attempts to distinguish Doak on its facts, noting that the Doak plaintiff had
    “frequent unscheduled absences,” which “prevented her from participating in program meetings
    and other work group collaboration.” Pl.’s Opp’n at 19 (quoting 
    Doak, 798 F.3d at 1106
    (alterations adopted)). According to the plaintiff, the accommodations she requested “would
    21
    have permitted her to perform her job consistently.” 
    Id. This claim,
    however, lacks any
    evidentiary foundation and is contradicted by her own deposition testimony in which she
    confirmed that her team met frequently, that meetings were often “impromptu,” and that they
    were an important part of her job. Pl.’s Dep. at 36:15-18, 45:9-10, 46:23-47:2, 59:11-17, 95:1-7,
    96:20-97:11, 117:18-25. See 
    Doak, 798 F.3d at 1106
    (noting the plaintiff’s claim that a late start
    time “would not have interfered with [her] ability to do [her] job” was “devoid of any detail,
    explanation, or evidentiary corroboration” and was “contradict[ed by] [the plaintiff’s] own
    deposition testimony, in which she confirmed that . . . her job involved interactive meetings”).
    At bottom, the plaintiff’s unsupported statements that she could perform the essential
    functions of her job with her requested accommodations “is insufficient to create a jury issue in
    light of overwhelming and undisputed evidence that included her own prior sworn testimony.”
    
    Id. at 1107.
    Accordingly, the defendant is entitled to summary judgment as to the plaintiff’s
    claim for failure to accommodate under the Rehabilitation Act.
    B.      Counts II and III: Disparate Treatment and Retaliation
    The plaintiff makes three additional claims in Counts II and III of the FAC. First, the
    plaintiff alleges the defendant discriminated against her because of her disability by refusing to
    allow her back to work. See generally FAC ¶¶ 101-13 Second, the plaintiff argues she was
    retaliated against for her EEO complaints because she was not included among the fifteen
    nominees for the 2012 Director’s Award for Outstanding Information Management, 
    id. ¶¶ 114-
    36, or among the nominees for the 2013 Attorney General’s Award for Excellence in
    Information Technology, 
    id. ¶ 137.
    These claims fail, however, because the plaintiff has not shown that the defendant’s
    proffered non-discriminatory reasons for not allowing her back to work and not nominating her
    22
    for the 2012 Director’s Award are even remotely pretextual. Further, the plaintiff cannot sustain
    her retaliation claim for not receiving the 2013 Attorney General’s Award since that allegation
    was not administratively exhausted. Each claim is assessed in turn.
    1.     FBI’s Refusal to Allow the Plaintiff to Return to Work
    The plaintiff argues the “FBI refused to allow [her] to work because she became
    disabled.” FAC ¶ 102. Courts analyze such “disability discrimination claims under the
    McDonnell Douglas burden-shifting framework.” Doak v. Johnson, 
    19 F. Supp. 3d 259
    , 271
    (D.D.C. 2014) (citing Aka v. Wash. Hosp. 
    Ctr., 156 F.3d at 1288-89
    ). Under the burden-shifting
    framework, the plaintiff must establish 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.’” 
    Id. (quoting Taylor
    v. Small, 
    350 F.3d 1286
    , 1292 (D.C. Cir. 2003)). “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.’” 
    Id. (quoting Stella
    v. Mineta, 
    284 F.3d 135
    , 145 (D.C. Cir.
    2002)).
    In Brady v. Office of Sergeant at Arms, 
    520 F.3d 490
    , 493 (D.C. Cir. 2008), the D.C.
    Circuit clarified that, at the summary judgment stage, “the question whether the employee made
    out a prima facie case is almost always irrelevant.” Instead, “the district court must resolve one
    central question: Has the employee 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 the employee on the basis of [a protected
    characteristic].” 
    Id. at 494.
    23
    The defendant has provided two legitimate, non-discriminatory reasons for refusing to
    allow the plaintiff to return to work on a two-hour-per-day work schedule, and the plaintiff has
    not produced any, let alone sufficient, evidence for a reasonable jury to find that these were not
    the actual reasons for the FBI’s decision. 
    Id. First, the
    plaintiff’s requested accommodation of a two-hour-per-day work schedule
    amounted to less than sixteen hours per week and was against FBI policy at the time. See Def.’s
    Mot., Ex. 8 at 1126-30, ECF No. 25-12 (FBI Policies on Part-Time Work); see also 
    id., Ex. 7
    at
    FBI 3924, ECF No. 25-11 (FBI Work Schedule Policy Implementation Guide). Moreover, as
    discussed above, the defendant has established that the plaintiff could not perform the essential
    functions of her position with her proposed two-hour-per-day work schedule. 
    See supra
    Part
    III(A)(2). Indeed, the plaintiff admits that she could not have initially performed the essential
    functions of her position on this schedule. Pl.’s Opp’n at 18-19. As she effectively concedes she
    could not initially perform the essential functions of her position, the plaintiff has failed to
    “respond with sufficient evidence to create a genuine dispute on th[is] . . . issue . . . by
    showing . . . that a discriminatory reason more likely motivated the employer . . . [or] that the
    employer’s proffered explanation is unworthy of credence.” 
    Doak, 798 F.3d at 1107
    (internal
    quotation marks omitted). Indeed, the fact that the plaintiff was receiving, and continued to
    receive for months after her requested accommodation, workers’ compensation payments only
    underscores the fact that, at the time, the plaintiff was not prepared to perform the essential
    functions of her position. See Soto-Ocasio v. Fed. Express Corp., 
    150 F.3d 14
    , 19-20 (1st Cir.
    1998) (“[I]f an ADA plaintiff was receiving . . . disability benefits that were predicated on her
    inability to perform the job, then, to defeat a motion for summary judgment, she must make
    some type of showing that she was in fact able to perform the essential functions of her job
    24
    during the time in question.”) (citing Weigel v. Target Stores, 
    122 F.3d 461
    , 468 (7th Cir. 1997))
    (emphasis in original).
    Second, even if the FBI wanted to accommodate the plaintiff, at the time she made the
    requested accommodation, the plaintiff was receiving FECA workers’ compensation benefits for
    a disability and those benefits would have to stop. See Def.’s Mot., Ex. 14 at FBI 1671; 5 U.S.C.
    § 8116(a) (federal employees may not receive compensation while receiving FECA benefits).
    Thus, the FBI concluded that the only option available to the plaintiff was obtaining an AWA
    facilitated by the FBI’s WCU and approved by DOL. See Pl.’s Opp’n at 4; Def.’s Mot., Ex. 14
    at FBI 1671; 
    id., Ex. 20
    at FBI 1583, Ex. 21 at FBI 2269. Yet, an AWA was not viable. 5 DOL
    would not approve a two-hour-per-day work schedule. Def.’s Mot., Ex. 22 at FBI 2313; Def.’s
    Reply, Ex. 37 at FBI 3704, ECF No. 38-2; Def.’s Reply, Ex. 38 at FBI 1338, ECF No. 38-3 (fax
    from DOL indicating that the claims examiner told the plaintiff that “a 2 hour a day job would
    not be deemed suitable”). 6 Further, the plaintiff never confirmed the duties she would be able to
    5
    The plaintiff seizes on comments by Schlendorf made in response the plaintiff’s May 18, 2012 email
    informing him that she was cleared by her doctor to work 2 hours a day on a “gradual limited schedule.” Pl.’s
    Opp’n at 12-13; see Def.’s Mot., Ex. 10 at FBI 2218, ECF No. 25-14. Schlendorf replied: “That is great news and
    we look forward to getting you back on the team.” Def.’s Mot., Ex. 10 at FBI 2218. Schlendorf also indicated that
    they hoped to “scope out a meaningful role that meets the requirements you notes [sic].” 
    Id. Although the
    plaintiff
    makes much of these statements, the mere comment by one supervisor that the plaintiff could play a “meaningful
    role” by working limited hours does not indicate that the plaintiff’s proposed accommodations were reasonable or
    that plaintiff could perform her essential job functions by working only two hours per day. Essential job functions
    are the “fundamental job duties” of an employee’s position, and they include all but the “marginal functions” of a
    job. 29 C.F.R. § 1630.2(n)(1). A “meaningful role” does not imply that plaintiff could perform her “essential job
    functions.” In any event, the next day, Schlendorf clarified his comments, stating that the plaintiff “should focus on
    her recovery, and when she reaches a point where she is medically cleared to work 4 hours a day, RPO w[ould] be
    happy to work with her on the [Alternative Work Assignment.]” Def.’s Reply, Ex. 36 at FBI 2219.
    6
    The plaintiff claims that the “FECA Manual now describes the minimum hours for a suitable job as 2-hours
    per day.” Pl.’s Opp’n at 34. Assuming that is true, that has nothing to do with the instant case. At the time the
    plaintiff was seeking an AWA, DOL refused to authorize a 2-hour per day job offer, a fact that the plaintiff does not
    dispute. Def.’s Mot., Ex. 22 at FBI 2313 (Huff explaining that he spoke to Stephanie Stone, a Supervisory Claims
    Examiner at DOL, who informed him that DOL does not approve 2-hour job offers as “suitable”). In her Sur-Reply,
    the plaintiff disputes only whether she was told that DOL did not deem a two-hour per day job suitable. See Pl.’s
    Sur-Reply at 11-12, ECF No. 42; Pl.’s Dep. at 121-22 (plaintiff stating that she did not recall being told by a claims
    examiner that a “two-hour-a-day job would not be deemed suitable.”). Whether DOL or the FBI so advised the
    plaintiff is immaterial given the undisputed documentary evidence that DOL’s Supervisory Claims Examiner
    communicated to the defendant that a two-hour per day job would not be suitable. Def.’s Mot., Ex. 22 at FBI 2313.
    25
    perform as required. See Def.’s Mot., Ex. 15 at FBI 2205-07 (exchanges between Stoddard,
    Schlendorf, and the plaintiff showing that the plaintiff had not “confirmed that the work duties
    were okay and appropriate for her medical circumstances”). As Huff confirmed, in order to
    write an AWA job offer, he had to have a “list of duties that [the plaintiff would] be performing.”
    Def.’s Mot., Ex. 19 at FBI 2250. According to Huff, however, the plaintiff could not commit to
    performing any specific job duties as she did not feel comfortable “trying to make deadlines with
    her work.” 
    Id. at 2250-51.
    Nevertheless, the plaintiff contends that the decision to deny the plaintiff’s request to
    work two hours per day was “suspect” because the FBI could have used the “help.” Pl.’s Opp’n
    at 35. The plaintiff misses the point. Regardless of whether the FBI could have used her “help,”
    they could not offer an opportunity for her to work two hours a day because it was, at the time, in
    violation of FBI and DOL policies.
    Moreover, the plaintiff’s supervisors all appear to have expressed serious concern about
    the plaintiff’s health and well-being. Huff told the plaintiff that all of her supervisors concluded
    that the plaintiff “need[ed] to concentrate on recovery efforts regarding [her] medical condition”
    and all “agreed that [the plaintiff] need[ed] to continue [her] recovery program and the most
    important issue [was her] long term health and well being.” Def.’s Mot., Ex. 18 at FBI 1836.
    Huff added that “[c]oming back to work at this point could jeopardize all the hard work and
    positive gains [she] ha[d] made thus far.” 
    Id. Moreover, Huff
    resisted submitting an AWA for
    the plaintiff, in part, due to concern that because of her “bad days,” she would not be able to
    comply with an AWA’s terms. 
    Id. As noted,
    having “bad days” could have made it difficult for
    the plaintiff to maintain a consistent and predictable work schedule. Huff believed this could
    26
    have led to a “denial of benefits.” 
    Id. Thus, if
    anything, her supervisors appear to have been
    looking out for the plaintiff’s interests, rather than acting out any discriminatory animus.
    The defendant has more than sufficiently supported its case that the plaintiff could not
    perform the essential functions of her job in 2012 and early 2013, and that her requested
    accommodation of a two-hour-per-day work schedule was contrary to FBI and DOL policies
    barring such limited hours and the grant of a “reasonable accommodation” to a person being
    compensated under FECA. In short, the plaintiff has presented no evidence suggesting that the
    FBI’s “asserted non-discriminatory reason[s] w[ere] not the actual reason[s] and that the [FBI]
    intentionally discriminated against the [plaintiff] on the basis of [her disability].” Brady v. Office
    of Sergeant at 
    Arms, 520 F.3d at 494
    . Accordingly, the defendant’s motion for summary
    judgment is granted on Count II.
    2.       Defendant’s Failure to Award the 2012 Director’s Award
    The plaintiff claims in Count III that she was retaliated against, after complaining to the
    OEEOA about the denial of her two-hour-per-day work schedule, when she was not included as
    a nominee for the non-monetary 2012 Director’s Award. FAC ¶¶ 114-36. The defendant
    responds that the plaintiff has not adequately rebutted the defendant’s proffered legitimate, non-
    discriminatory reason for denying her the award. 7 The Court agrees with the defendant.
    7
    The defendant also argues that that the denial of the award was not an “adverse employment action” in the
    context of a prima facie retaliation claim under the Rehabilitation Act, Def.’s Mem. at 31-34, but this argument is
    not persuasive. While the D.C. Circuit has held that "not everything that makes an employee unhappy is an
    actionable adverse action," Bridgeforth v. Jewell, 
    721 F.3d 661
    , 663 (D.C. Cir. 2013), "[i]n the retaliation context
    the 'adverse action' concept has a broader meaning,” and "reach[es] any harm that 'well might have dissuaded a
    reasonable worker from making or supporting a charge of discrimination.'" Baird v. Gotbaum, 
    662 F.3d 1246
    , 1249
    (D.C. Cir. 2011) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 
    548 U.S. 53
    , 68 (2006)). The defendant does
    not dispute that the Director's Award is "among the highest honors employees may receive from the FBI." Compare
    FAC ¶ 55 with Def.’s Ans. ¶ 55. Thus, a reasonable employee could find that their removal from a list of nominees
    for the award, denying them the prestige of the award itself as well as the recognition from their peers and
    supervisors at the awards ceremony, would "dissuade" them from "making or supporting a charge" of discrimination
    or retaliation, or from requesting a disability accommodation. 
    Baird, 662 F.3d at 1249
    . The Court assumes
    therefore, without resolving, that the plaintiff's exclusion from the list of nominees for the 2012 Director's Award
    constitutes an "adverse employment action" for the purposes of her retaliation claim.
    27
    The plaintiff has again “failed to cast any reasonable doubt on, or create any disputed
    question of material fact concerning,” her protected activities or her employer’s “asserted non-
    retaliatory reason for” denying her the award. 
    Doak, 798 F.3d at 1108
    . Blake explained that he
    did not nominate the plaintiff for the 2012 Director’s Award because he did not feel her
    contribution to Sentinel was critical to the success of the project because she was “mainly a
    conduit for the flow of information between the team and one entity” and “[s]he was not one of
    the managers overseeing the details of the project or one of the designers or programmers who
    created Sentinel.” Blake Statement at FBI 64. Johnson, who made the final decision regarding
    the nominees, “emphasize[d] that hundreds of people contributed to the success of Sentinel” and
    that while the plaintiff “was certainly one of those contributors,” Johnson felt “her contributions
    to the success of Sentinel were far exceeded by the 15 nominated for the Director’s Award.”
    Johnson Statement at FBI 58-59.
    The plaintiff’s efforts to raise a disputed fact regarding these non-pretextual reasons for
    the denial to her of the 2012 Director’s Award fall flat. First, she contends that all of the
    members of the Sentinel team received the award, and so did “every member of the Sentinel
    team who worked to [sic] the transition.” Pl.’s Opp’n at 38. As the defendant notes, however,
    the plaintiff supports this statement only by reference to the FAC. See Def.’s Reply at 21.
    Contrary to the plaintiff’s contention that more than fifteen individuals could have been
    nominated, Pl.’s Opp’n at 40, Blake understood that only fifteen people could be nominated for
    the award, see Blake Dep. at 26:15, an understanding corroborated by the plain terms of the
    award guidelines expressly limiting the number for group nominations to fifteen “significantly
    contributing individuals,” Def.’s Mot., Ex. 25 (Director’s Award Guidelines), ECF No. 25-29;
    see also Johnson Statement at FBI 58 (“Only 15 people can be included when nominating a
    28
    group for the Director’s Award . . . .”); Def.’s Reply, Ex. 43, Sworn Statement of Amy Waye,
    Unit Chief in the Awards and Recognition Unit, at FBI 69, ECF No. 38-8 (explaining that “group
    awards are limited to 15 employees, as specified in the Director’s Award Nomination
    Guidelines”). Consequently, many members of the Sentinel team did not receive the award.
    Compare Def.’s Reply, Ex. 40 at FBI 532-35, ECF No. 38-5 (Sentinel project organizational
    chart) with 
    id., Ex. 41
    at FBI 567-71, ECF No. 38-6 (list of recipients of the 2012 Director’s
    Award); see also Johnson Statement at FBI 57 (stating that the Sentinel team who worked on the
    project from October 2010 through July 2012 was comprised of “approximately 50 people”).
    Next, the plaintiff compares herself to two members of the Sentinel team who did receive
    the award and claims that she performed similar work. Pl.’s Opp’n at 39 (claiming her work was
    similar to award recipients Debra McDougal and Tiffany Martin). At the outset, the plaintiff
    does not dispute that these two individuals deserved the award for their significant contributions
    to the project. See Pl.’s Dep. at 140-41. According to Blake, McDougal “knew every facet of
    the operation,” and “her knowledge and her input was critical to the success of Sentinel,” Blake
    Dep. at 51:20-22, 52:1-3, and Martin was not only a liaison, but also assisted with training, and
    provided value because of her experience of being from a “large office,” 
    id. at 56:15-22,
    57:1-13.
    By contrast to these individuals, the plaintiff was away from work on disability for all of 2012
    and, consequently, has simply not shown that any similarly situated employees received the
    award.
    Finally, the plaintiff asserts that she was included on the February 2012 nominee list but
    omitted on the May 2012 list. Pl.’s Opp’n at 37-38. The plaintiff stopped working on the
    Sentinel project in September 2011, but admits that the most important parts of a development
    project occur near the end as it is readying deployment. See Pl.’s Dep. at 134. In this case, the
    29
    Sentinel project was delivered and adopted in July 2012, see Johnson Statement at FBI 57, and,
    thus, it makes sense that by mid-2012, the decision makers may have reassessed who among the
    team had made the most significant contributions to get the project over the finish line to
    completion, see Blake Dep. at 29:17-30:10, 37:13-17 (Blake stating that they reviewed the
    individuals who “had a larger impact toward the successful deployment of Sentinel”); 
    id. at 76:18-77:17
    (stating that a number of other individuals “fell off” the nominee list because others
    “had done more of the heavy lifting to get Sentinel to a state of delivery and success”).
    The plaintiff may feel strongly that she should have been nominated for the Director’s
    award in lieu of others who also contributed to the Sentinel project. See Pl.’s Dep. at 131:2-3
    (plaintiff testifying that it “doesn’t make sense” that she was not nominated). Absent evidence of
    pretext, however, the law does not permit a plaintiff to redirect her hurt feelings or wounded
    pride about not being nominated for an award into a cognizable federal claim for retaliation. In
    this case, the defendant has provided substantial reasons for why the plaintiff was not included
    on the May 2012 list of nominees for the 2012 Director’s Award. As much as the plaintiff may
    feel this decision was incorrect, she has failed to supply evidence that would persuade a
    reasonable jury that the reasons given for the decision are pretextual. See Morris v. McCarthy,
    
    825 F.3d 658
    , 671 (D.C. Cir. 2016) (A “plaintiff cannot survive summary judgment merely by
    asserting that her employer made a bad decision. Rather, she must raise a genuine dispute over
    the employer’s honest belief in its proffered explanation.”); see also Fischbach v. D.C. Dep’t of
    Corr., 
    86 F.3d 1180
    , 1183 (D.C. Cir. 1996) (stating that “[o]nce the employer has articulated a
    non-discriminatory explanation for its action . . . the issue is not ‘the correctness or desirability
    of [the] reasons offered . . . [but] whether the employer honestly believes in the reasons it offers”
    30
    (alterations in original)). The plaintiff’s subjective feeling that it “didn’t make sense” that she
    wasn’t nominated is simply not sufficient to defeat a motion for summary judgment.
    In short, the “record makes clear that [the Director’s Awards] are discretionary” and the
    FBI “declined to reward [the plaintiff’s] performance because, in management’s estimation, [the
    plaintiff’s] performance did not merit reward.” Nurriddin v. Bolden, 
    818 F.3d 751
    , 761 (D.C.
    Cir. 2016). “Without evidence that a similarly situated employee received special recognition
    denied to [the plaintiff], or evidence [the defendant] is ‘lying about the underlying facts that
    formed the predicate’ for their decision not to confer a performance award,” the Court “cannot
    conclude that [the FBI’s] decision to withhold [her] discretionary award was discriminatory.” 
    Id. (quoting Brady
    v. Office of Sergeant at 
    Arms, 520 F.3d at 495
    ).
    Accordingly, the defendant is entitled to summary judgement on Count III as to the 2012
    Director’s Award.
    3.      Plaintiff’s Failure to Exhaust Administrative Remedies with Respect to
    the 2013 AG’s Award
    In the FAC, the plaintiff claims that her exclusion from the list of nominees for the 2013
    Attorney General’s Award for Excellence in Information Technology was retaliatory. FAC
    ¶ 137. The defendant moves to dismiss this claim for lack of subject matter jurisdiction,
    pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, because the plaintiff has failed
    to exhaust her administrative remedies. See Def.’s Mem. at 41-42. The defendant is correct.
    A plaintiff may file a Rehabilitation Act action in federal court only after exhausting her
    administrative remedies before the relevant federal agency for each allegedly discriminatory act.
    See Barkley v. U.S. Marshals Serv. ex rel. Hylton, 
    766 F.3d 25
    , 34–35 (D.C. Cir. 2014) (citing
    Spinelli v. Goss, 
    446 F.3d 159
    , 162 (D.C. Cir. 2006)). Under the Rehabilitation Act, a failure to
    exhaust administrative remedies is a jurisdictional defect, requiring dismissal for lack of subject-
    31
    matter jurisdiction under Rule 12(b)(1), because there would not be “any reviewable final
    administrative action at all.” Doak, 
    798 F.3d 1096
    , 1103-04 (D.C. Cir 2015); see 
    Spinelli, 446 F.3d at 162
    (remanding case since “[t]he district court also should have dismissed [the plaintiff's]
    Rehabilitation Act claim for lack of jurisdiction on the ground that he failed to exhaust his
    administrative remedy,” citing statutory language as “mandating administrative exhaustion”); see
    also 
    Barkley, 766 F.3d at 34-35
    (noting Spinelli's holding “that a district court lacks jurisdiction
    over a Rehabilitation Act claim if “there was no administrative complaint [filed] and thus no
    final disposition of one.” (alteration in original)). Since exhaustion of Rehabilitation Act claims
    is a jurisdictional requirement, the plaintiff has the burden to plead and prove it. See Spinelli v.
    
    Goss, 446 F.3d at 162
    ; Dick v. Holder, 
    80 F. Supp. 3d 103
    , 110 (D.D.C. 2015); Mahoney v.
    Donovan, 
    824 F. Supp. 2d 49
    , 58 (D.D.C. 2011), aff’d, No. 12-5016, 
    2012 WL 3243983
    (D.C.
    Cir. Aug. 7, 2012); Ellison v. Napolitano, 
    901 F. Supp. 2d 118
    , 124 (D.D.C. 2012). “A plaintiff
    fails to exhaust her administrative remedies when the complaint she files in federal court
    includes a claim that was not raised in the administrative complaint.” Latson v. Holder, 82 F.
    Supp. 3d 377, 384 (D.D.C. 2015) (quoting Mogenhan v. Shinseki, 
    630 F. Supp. 2d 56
    , 60
    (D.D.C. 2009)). “This exhaustion requirement is not a ‘mere technicality,’ but ‘serves the
    important purposes of giving the charged party notice of the claim and narrow[ing] the issues for
    prompt adjudication and decision.’” 
    Id. (quoting Park
    v. Howard Univ., 
    71 F.3d 904
    , 907 (D.C.
    Cir. 1995); see also Singleton v. Potter, 
    402 F. Supp. 2d 12
    , 32 (D.D.C. 2005) (“[A]s the D.C.
    Circuit has emphasized: ‘Allowing a complaint to encompass allegations outside the ambit of the
    predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as
    well as deprive the charged party of notice of the charge, as surely as would an initial failure to
    32
    file a timely EEOC charge.’” (quoting Marshall v. Fed. Express Corp., 
    130 F.3d 1095
    , 1098
    (D.C. Cir. 1997))).
    The plaintiff’s second and last administrative complaint in October 2012 did not mention
    the 2013 Attorney’s General’s Award. See Def.’s Mot., Ex. 30, Pl.’s October 2012 Admin.
    Compl. at FBI 13-14, ECF No. 25-34. Indeed, the plaintiff does not even contend that her claim
    was raised at the administrative level. See Pl.’s Opp’n at 44. Instead, the plaintiff requests that
    this failure to exhaust be excused because the FBI is applying “an overly technical approach to
    exhaustion requirements.” 
    Id. In her
    view, her retaliation claims regarding both the Director’s
    and Attorney General’s Awards “grew out of the same conduct” and “thus the claims are like and
    reasonably related.” 
    Id. (citing Faison
    v. Vance-Cooks, 
    896 F. Supp. 2d 37
    , 55-56 (D.D.C.
    2012)) (internal quotation marks omitted). The plaintiff contends that her Director’s Award
    complaint “had already given the agency a chance to act, and, thus, [her] Attorney General’s
    Award claim should not be dismissed.” 
    Id. (alterations adopted).
    The D.C. Circuit has made clear, however, that “for a charge to be regarded as
    ‘reasonably related’ to a filed charge . . . it must [a]t a minimum . . . arise from the administrative
    investigation that can reasonably be expected to follow the charge of discrimination.” Payne v.
    Salazar, 
    619 F.3d 56
    , 65 (D.C. Cir. 2010). “This connection is necessary to give the agency ‘an
    opportunity to resolve [the] claim administratively before [the employee] file[s] her complaint in
    district court.’” 
    Id. (quoting Wiley
    v. Glassman, 
    511 F.3d 151
    , 160 (D.C. Cir. 2007)). In this
    case, however, the plaintiff did not learn that she was excluded from the 2013 Attorney
    General’s Award until the Fall of 2014, see Pl.’s Opp’n at 44, and it was not included in her
    initial October 28, 2014 complaint filed in this Court, but was only added in the March 23, 2015
    FAC. Compare Pl.’s Compl., ¶¶ 103-12, ECF No. 1 with FAC ¶ 137. This was more than two
    33
    years after her second administrative complaint and more than a year after the investigation into
    her administrative retaliation claim concluded. See Def.’s Reply, Ex. 44, ECF No. 38-9
    (excerpts of the administrative Report of Investigation dated received on February 13, 2013).
    Thus, as the defendant points out, Def.’s Reply at 28, “her claim concerning the retaliatory
    conduct” regarding the 2013 Attorney General’s Award “could not possibly have arisen from the
    administrative investigation” that concluded before she was even aware that she was excluded
    from the 2013 award, 
    Payne, 619 F.3d at 65
    . “This is necessarily so because the administrative
    investigation of those complaints ended . . . well before” the fall of 2014. 
    Id. Thus, the
    plaintiff
    failed to exhaust her retaliation claim with respect to the 2013 Attorney General’s award. See
    
    Latson, 82 F. Supp. 3d at 384
    (“A plaintiff fails to exhaust her administrative remedies when the
    complaint she files in federal court includes a claim that was not raised in the administrative
    complaint.” (quoting 
    Mogenhan, 630 F. Supp. 2d at 60
    ); see also 
    Marshall, 130 F.3d at 1098
    ;
    Howard 
    Univ., 71 F.3d at 907
    . Accordingly, to the extent that the plaintiff’s retaliation claim in
    Count III is predicated on allegations regarding the 2013 Attorney General’s Award, that claim is
    dismissed.
    IV.    CONCLUSION
    The plaintiff has not raised a genuine issue of material fact as to whether she could have
    performed the “essential functions” of her position after her injury in September 2011 and until
    her return to part-time work in 2013. Moreover, the plaintiff has not produced sufficient
    evidence for a reasonable jury to find that the defendant’s proffered non-discriminatory reasons
    for not allowing her to return were not the “actual reasons” and that the FBI intentionally
    discriminated against her based on her disability. The plaintiff has also not shown that the
    defendant did not have legitimate, non-discriminatory reasons for excluding her from the list of
    34
    nominees for the 2012 Director’s Award. Finally, because the plaintiff did not raise her
    allegation regarding the 2013 Attorney General’s award in her administrative complaints, that
    claim is unexhausted and must be dismissed. Accordingly, the defendant’s Motion to Dismiss
    Digitally signed by Hon. Beryl A.
    and for Summary Judgment is GRANTED.                                 Howell, U.S. District Court Judge
    DN: cn=Hon. Beryl A. Howell, U.S.
    District Court Judge, o=U.S.
    District Court for the District of
    Date: March 30, 2017                                          Columbia, ou,
    email=Howell_Chambers@dcd.u
    scourts.gov, c=US
    Date: 2017.03.30 11:18:40 -04'00'
    __________________________
    BERYL A. HOWELL
    Chief Judge
    35
    

Document Info

Docket Number: Civil Action No. 2014-1805

Citation Numbers: 246 F. Supp. 3d 325

Judges: Chief Judge Beryl A. Howell

Filed Date: 3/30/2017

Precedential Status: Precedential

Modified Date: 1/13/2023

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