Morris v. Johnson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
CONNIE K. MORRIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-491 (RWR)
)
LISA P. JACKSON, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION

Plaintiff Connie Morris brings this action under the

Rehabilitation Act, 29 U.S.C. § 701 et seq. against her former

employer, the Environmental Protection Agency (“EPA”), alleging

that the EPA discriminated against her based on disability,

failed to accommodate her disability, and retaliated against her

for complaining about it. The EPA has moved for summary

judgment. Because no material facts are in dispute and the EPA

has shown that it is entitled to judgment as a matter of law on

Morris’ complaint, the motion for summary judgment will be

granted.

BACKGROUND

Morris suffers from a disability she describes as a “yeast

sensitivity” that has caused her to have allergic reactions after

being exposed to small concentrations of yeast or other molds.

Am. Compl. ¶¶ 12-13. From January 2003 through March 2007,

Morris was employed by the EPA as a Technical Information
 -2-

Specialist for the Federal Register Staff of the EPA’s Office of

Program Management Operations. Def.’s Stmt. of Mat. Facts

(“Def.’s Stmt.”) ¶¶ 1-2; Pl.’s Stmt. of Mat. Facts (“Pl.’s

Stmt.”) ¶¶ 1-2. Morris’s position description set forth her

duties and placement. She was required to “provide leadership in

executing editorial policy and priorities” by coordinating

document preparation efforts that were necessary to implement the

provisions of federal legislation that the EPA’s Office of

Prevention, Pollution, and Toxic Substances (“OPPTS”) administers

and enforces. Def.’s Mot. for Summ. J. (“Def.’s Mot.”), Ex. F

(“Position Description”) at 1; Am. Compl. ¶ 10. Morris was

expected to provide training, assistance and guidance to EPA

personnel who were working with regulatory documents, and to

respond immediately to questions about the location and status of

OPPTS documents that were being circulated for signature.

Position Description at 1; Def.’s Stmt. ¶¶ 6-9; Am. Compl. ¶ 10.

Morris’ work was “work station oriented,” and she was assigned to

the 6109 Connecting Wing Space known as “EPA West,” an area where

18 other EPA employees worked. Position Description at 1; Def.’s

Stmt. ¶¶ 5, 10.

Morris was directly supervised by the Director of the

Federal Register Staff, John Richards, and indirectly supervised

by the Associate Assistant Administrator of the OPPTS, Marylouise
 -3-

Uhlig. Def.’s Stmt. ¶¶ 3-4. According to Richards, it was

“necessary” for Morris to work at an EPA work site.

[Morris] was part of a team. In that role, she was
critical to the development of the authoring tools that
we were preparing for the entire program. She had to
interface with other people. She was critical in the
recruitment of C-programmers, because we didn’t have
any other programmers on staff, and these people were
supposed to assist [Morris] in the programming work she
was doing. In addition to that, there was a need for
her to help bring people along in the process and help
support the staff. I mean, she would help people when
they had computer problems; she did a lot of different
things within the office. In keeping her within the
EPA transportation system, it allowed me to send people
to wherever [Morris] was, if necessary, to work with
her. Once she was outside the EPA transportation
system, there was no way I could make that connection.
I personally decided it would be inappropriate for me
to be authorizing people to travel to her home or even
to an alternative telecommunications site run by GSA,
where we had no transportation for these people. So
keeping her inside the EPA transportation system was
the key element, and what we tried to do is find her a
place within the EPA transportation system where she
could be reached that worked for her. . . . [The EPA
transportation system is a] series of shuttle buses,
time-consuming, fixed schedule buses to transport EPA
people from one site to another. But the key element
is they’re free. I didn’t have to reimburse people for
Metro, I didn’t have to do anything as far as paying
for taxicabs, and I didn’t - - I couldn’t require other
people to walk to wherever she was.

Def.’s Mot., Ex. D (“Richards’ Dep.”) at 35-37.

In November 2004, Morris reported to Richards that she was

experiencing an “allergy to the EPA workplace.” Def.’s Stmt.

¶ 12, Ex. C at 1. Richards allowed Morris to test various areas

to determine whether she thought she could work comfortably in a

different location. Richards allowed Morris temporarily to work
 -4-

from home. Morris eventually decided to work in a conference

room located in the “EPA East” building. Def.’s Stmt. ¶¶ 14-16.

However, in December 2004, Morris complained to Richards that she

was again experiencing allergic reactions in the EPA East

conference room, and she asked to work from home permanently.

Id. ¶ 17. Richards purchased air purifiers and air filters and

tested the air quality in the areas where Morris worked.1 The

air quality testing indicated that the air in Morris’ workspace

was actually superior to outside air, and that it contained no

fungal growth, no airborne microbial amplification, and did not

increase the risk to Morris’ health. Id. ¶¶ 18-19.2

On April 29, 2005, Morris asked to permanently work from her

home, as a reasonable accommodation for her “extreme sensitivity”

to “[o]ngoing exposure to mold, mildew, and dust mites from the

work environment,” which caused “numerous allergic reactions with

episodes of body swelling, breathing difficulties, bronchitis,

rashes, rapid heart rate, rise in blood pressure and several

other symptoms relating to allergy sensitivity.” Am. Compl. ¶ 6;

Def.’s Stmt. ¶¶ 23-24. In July 2005, the EPA’s National

Reasonable Accommodation Coordinator issued a “Determination of

1
According to Richards, Morris “did the research, found the
filters,” and then the EPA put them over the vents which
“improved the situation at times.” Richards’ Dep. at 26-27.
2
Morris does not dispute that the testing occurred, but
disputes that some of the testing was done for her benefit and
disputes the relevance of the testing. Pl.’s Stmt. ¶¶ 18-19.
 -5-

Disability” regarding Morris’ request, stating that “after

careful review” of the medical information provided by Morris,

which included reports from her primary doctor and from Dr. Ahmad

Shamin, “it is confirmed that a medical condition exists that

substantially limits [Morris’] major life activities of breathing

and walking and therefore she is determined to be a person with a

disability” under the Rehabilitation Act, giving EPA management

the authority to provide Morris with a reasonable accommodation.

Pl.’s Opp’n, Ex. 5. Afterwards, the EPA assigned Morris to a

building which was designated as a “clean space” facility,

located in Crystal Station, Virginia. Morris was the only member

of Federal Register Staff who worked at the Crystal Station

building, and when contractors or other members of the Federal

Register Staff had to interact with Morris in person, they had to

travel to the building in Crystal Station. Am. Compl. ¶ 13;

Def.’s Stmt. ¶¶ 25-27.

Morris informed the EPA that she continued to suffer

allergic reactions at the Crystal Station building. The EPA

tested the air quality in the EPA building at Potomac Yards, and

found that the air quality there was cleaner than ambient air.

In June 2006, the EPA relocated Morris to the EPA’s building in

Potomac Yards. Am. Compl. ¶ 23; Def.’s Stmt. ¶ 29. Morris

asserted, though, that she was experiencing allergic reactions

that were triggered by that building. Am. Compl. ¶ 26. Richards
 -6-

asked Morris to provide medical documentation to support her

assertion that the air in the building at Potomac Yards triggered

her allergic reactions. Morris did not provide any, and in

October 2006, Richards reassigned Morris back to the EPA East

building. Am. Compl. ¶ 30; Def.’s Stmt. ¶ 30; Def.’s Mem.,

Ex. C. at 2. In December 2006, a separate Equal Employment

Opportunity Commission (“EEOC”) complaint3 that Morris filed

against the EPA was dismissed, and Morris was ordered to report

to work at EPA-East on January 2, 2007. Morris did report for

work on January 2, 2007, but she left two hours after she

arrived. In February 2007, Morris was charged with being absent

without leave for 412 hours between August 2006 and

December 2006, and her employment was terminated effective

March 10, 2007. Am. Compl. ¶¶ 8; Def.’s Stmt. ¶¶ 31-34.

In March 2007, Morris filed this action. Her amended two-

count complaint alleges that the EPA failed to accommodate her

disability (Count 1) and retaliated against her (Count 2). Am.

Compl. ¶¶ 58-66. The EPA has moved for summary judgment on both

counts, arguing that Morris is not disabled within the meaning of

3
In August 2005, Morris filed a complaint with the EEOC
alleging sex and disability discrimination against the EPA, in
which she sought a restoration of sick and annual leave that she
allegedly used as a result of her “workplace sensitivity,” and an
elimination of management’s “threats of termination of
employment[.]” Am. Compl. ¶ 7; Def.’s Mem. Ex. I. Morris
received an adverse decision from the EEOC’s Administrative Law
Judge on that complaint in December 2006. Am. Compl. ¶ 7; Def.’s
Mem. Ex. J.
 -7-

the Rehabilitation Act, that even if she were disabled she was

not a qualified person with a disability, that her desired

accommodation (working at home) was not a reasonable one, and

that the failure to acquiesce to Morris’ request was not a

materially adverse employment action that can form the basis of a

retaliation claim. Morris opposes.

DISCUSSION

“‘Summary judgment may be appropriately granted when the

moving party demonstrates that there is no genuine issue as to

any material fact and that moving party is entitled to judgment

as a matter of law.’” Modis v. Infotran Sys., Inc., 893 F. Supp.

2d 237, 240 (D.D.C. 2012) (quoting Pueschel v. Nat’l Air Traffic

Controllers Ass’n, 772 F. Supp. 2d 181, 183 (D.D.C. 2011)

(internal quotation omitted)). “‘In considering a motion for

summary judgment, [a court is to draw] all ‘justifiable

inferences’ from the evidence . . . in favor of the nonmovant.’”

Modis, 893 F. Supp. 2d at 240 (quoting Pueschel, 772 F. Supp. 2d

at 183 (quoting Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d

181, 189 (D.D.C. 2008) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986))); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)). “The relevant inquiry

‘is the threshold inquiry of determining whether there is a need

for a trial - - whether, in other words, there are any genuine

factual issues that properly can be resolved only by a finder of
 -8-

fact because they may reasonably be resolved in favor of either

party.’” Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 312

(D.D.C. 2009) (quoting Anderson, 477 U.S. at 250) (overruled on

other grounds by Prime Time Int’l Co. v. Vilsack, 599 F.3d 678

(D.C. Cir. 2010)). “A genuine issue is present in a case where

the ‘evidence is such that a reasonable jury could return a

verdict for the non-moving party,’ a situation separate and

distinct from a case where the evidence is ‘so one-sided that one

party must prevail as a matter of law.’” Modis, 893 F. Supp. 2d

at 239-40 (quoting Anderson, 477 U.S. at 248, 252).

I. DISCRIMINATION UNDER THE REHABILITATION ACT

“Section 501 of the Rehabilitation Act, codified at 29

U.S.C. § 791, is the exclusive remedy for federal employees

alleging that federal agencies engaged in disability

discrimination.” Graffius v. Shinseki, 672 F. Supp. 2d 119, 125

(D.D.C. 2009). Section 501(b) requires federal agencies to take

affirmative steps to make accommodations for qualified people

with disabilities. 29 U.S.C. § 791(b); see also Carr v. Reno,

23 F.3d 525, 528 (D.C. Cir. 1994); 29 C.F.R. § 1630.9(a). “The

Rehabilitation Act requires that an agency must make reasonable

accommodation to the ‘known physical and 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.’” Koch v.
 -9-

Schapiro, 759 F. Supp. 2d 67, 76 (D.D.C. 2011) (quoting 42 U.S.C.

§ 12112(b)(5)(A); citing Barth v. Gelb, 2 F.3d 1180, 1183 (D.C.

Cir. 1993)). To determine what an appropriate, reasonable

accommodation would be, an 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).

To survive a motion for summary judgment, a plaintiff alleging

that an agency failed to make a reasonable accommodation must

submit evidence showing that (1) she had a qualifying disability,

(2) her employer had notice of the disability, (3) with

reasonable accommodation she could perform the essential

functions of the position, and (4) she requested a reasonable

accommodation but the employer denied her request. See Schmidt

v. Solis, 891 F. Supp. 2d 72, 87 (D.D.C. 2012) (citing Graffius,

672 F. Supp. 2d at 125).

The EPA first argues that Morris was not disabled. (Def.’s

Mem. at 12.) “Disability” is a term defined by the

Rehabilitation Act to carry a specific meaning. “An individual

is disabled under the Rehabilitation Act only if she can show

that she (1) ‘has a physical or mental impairment which

substantially limits one or more . . . major life activities,’

(2) ‘has a record of such an impairment,’ or (3) ‘is regarded as

having such an impairment.’” Adams v. Rice, 531 F.3d 936, 943

(D.C. Cir. 2008) (quoting 29 U.S.C. § 705(20)(B)). “‘Major life
 -10-

activities’ are defined by regulation as ‘functions, such as

caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.’” Brown v.

Paulson, 541 F. Supp. 2d 379, 385 (D.D.C. 2008) (quoting 29

C.F.R. § 1630.2(i)). These terms are “interpreted strictly to

create a demanding standard for qualifying as disabled.” Toyota

Motor Mfg. Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002).

“‘A disability exists only where an impairment substantially

limits a major life activity, not where it might, could, or would

be substantially limiting if mitigating measures were not

taken[.]’” Coleman-Adebayo v. Leavitt, 326 F. Supp. 2d 132, 142

(D.D.C. 2004) (quoting Sutton v. United Air Lines, Inc., 527 U.S.

471, 482-83 (1999) (internal quotation omitted)). In addition,

“if the symptoms of an impairment are brought on by a single

workplace, such an impairment is not substantially limiting[.]”

Haynes v. Williams, 392 F.3d 478, 482-483 (D.C. Cir. 2004). “If

the impact of an impairment can be eliminated by changing the

address at which an individual works, that impairment is neither

permanent nor long term.” Id. at 483. To satisfy the

requirement of “substantial limitation,” courts “require that an

individual be ‘[u]nable to perform a major life activity that the

average person in the general population can perform’ or [be]

‘[s]ignificantly restricted as to the condition, manner or

duration under which an individual can perform a major life
 -11-

activity’ as compared to the average person in the general

population.” Green v. Am. Univ., 647 F. Supp. 2d 21, 30 (D.D.C.

2009) (quoting Heasley v. D.C. Gen. Hosp., 180 F. Supp. 2d 158,

166 (D.D.C. 2002) (internal quotation omitted)).

According to the EPA, Morris was not disabled because the

symptoms of her allergies and sensitivities could be overcome by

taking over-the-counter medication or by wearing a paper mask;

because “traveling, visiting friends and family, entertaining,

dining out, and shopping are not major life activities”; and

because Morris’ allergic reactions occurred only while at work,

which showed that they did not substantially limit her major life

activities. Def.’s Mem. at 14, 17. However, Morris has alleged

that she experiences symptoms of her condition away from the

workplace, see Am. Compl. ¶ 12., the EPA has not argued that

breathing or walking are not major life activities, and the EPA’s

position is directly contradicted by the EPA’s National

Reasonable Accommodation Coordinator’s determination in 2005 that

Morris was disabled by a condition that limited the major life

activities of breathing and walking. The EPA alleged that

Dr. Shamin “recanted” his opinion upon which the Reasonable

Accommodation Coordinator’s determination was partly based.

Def.’s Mem. at 16. However, Doctor Shamin did not “recant” his

opinion; he merely acknowledged that he worked with Morris’

attorney to draft a letter addressed to Richards, describing the
 -12-

nature of Morris’s health problems. Pl.’s Opp’n, Ex. 40 at 122-

127. Dr. Shamin continued to agree with the conclusions of that

letter. Id. at 123. The EPA has not explained why that

determination was incorrect, or why a prior determination by the

Agency that a plaintiff was disabled would not, at the very

least, create a genuine issue of material fact as to whether a

plaintiff was disabled under the Rehabilitation Act. Therefore,

the EPA’s argument that there is no genuine dispute that Morris

was not disabled fails.

The EPA also argues that Morris was not able to perform the

essential functions of her job with a reasonable accommodation,

and that her requested accommodation was not reasonable because

it would eliminate an essential function of her job. Def.’s Mem.

at 19, 21. An individual with a disability under the

Rehabilitation Act, 29 U.S.C. § 705(20)(B), must be qualified to

be protected by the Act - - “that is, he or she, ‘with or without

reasonable accommodation,’ must be able to ‘perform the essential

functions of the employment position that such individual holds

or desires.’” Taylor v. Rice, 451 F.3d 898, 905 (D.C. Cir. 2006)

(quoting 42 U.S.C. § 12111(8), citing 29 C.F.R. § 1630.2(m)).

“An individual who cannot perform the essential duties of his

job, even with an accommodation, is not ‘qualified’ under the

statute.” Saunders, 741 F. Supp. 2d at 249 (citing Chinchillo v.

Powell, 236 F. Supp. 2d 18, 24 (D.D.C. 2003)). The “essential
 -13-

functions” of a job are its fundamental duties based on a number

of factors, such as the employer’s judgment as to which functions

are essential, written job descriptions the employer prepared for

the position, the amount of time required to perform the

function, the consequences to the employer of not requiring the

activity, and the work experiences of past incumbents of the job

in question and of similar jobs. See 29 C.F.R. § 1630.2(n)(3);

Saunders v. Galliher & Huguely Assocs., 741 F. Supp. 2d 245,

248-249 (D.D.C. 2010) (stating that “[c]ourts frequently defer to

the employer’s judgment as to what functions of a job are

essential”); Ward v. Mass. Health Research Inst., Inc., 209 F.3d

29, 34 (1st Cir. 2000) (holding that in the absence of evidence

of discriminatory animus, courts “generally give substantial

weight to the employer's view of job requirements”); Kalekiristos

v. CTF Hotel Mgmt. Corp., 958 F. Supp. 641, 660 (D.D.C. 1997).

Often, “an essential function of any government job is an ability

to appear for work (whether in the workplace or, in the unusual

case, at home) and to complete assigned tasks within a reasonable

period of time.” Carr, 23 F.3d at 530. “‘Team work under

supervision generally cannot be performed at home without a

substantial reduction in the quality of the employee’s

performance.’” Amsel v. Tex. Water Dev. Bd., 464 Fed. Appx. 395,

400 (5th Cir. 2012) (quoting Hypes v. First Commerce Corp., 134

F.3d 721, 727 (5th Cir. 1998)). Training co-workers and
 -14-

providing guidance to co-workers are tasks that ordinarily must

be performed at an employer’s worksite. See Kiburz v. England,

361 Fed. Appx. 326, 334 (3d Cir. 2010) (stating that the district

court properly held that “training, scheduling [and attending

meetings], and [providing] guidance [to other staff and

managers]” could not be performed from home).

“[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. Washington Hosp.

Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998) (quoting Gile v.

United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996))

(internal quotation marks omitted). “To determine the

appropriate reasonable accommodation, the agency should ‘initiate

an informal, interactive process with the qualified individual

with a disability in need of accommodation.’” Loya v. Sebelius,

840 F. Supp. 2d 245, 258 (D.D.C. 2012) (quoting 29 C.F.R.

§ 1630.2(o)(3)). “A party that fails to communicate, by way of

initiation or response, may be acting in bad faith.” Woodruff v.

Lahood, 777 F. Supp. 2d 33, 41 (D.D.C. 2011). Employers can

demonstrate good faith by meeting with employees who request

accommodation, requesting information about the conditions and

limitations the employees have, asking employees what they want,

considering employees’ requests, and offering or discussing

available alternatives. Id. (citing Taylor v. Phoenixville Sch.
 -15-

Dist., 184 F.3d 296, 317 (3d Cir. 1999)). However, the

interactive process is not an end in itself, so “[w]hen the

interactive process breaks down ‘courts should attempt to isolate

the cause of the breakdown and then assign responsibility’ to the

culpable party.” Woodruff, 777 F. Supp. 2d at 42 (quoting

Rehling v. City of Chicago, 207 F.3d 1009, 1015-16 (7th Cir.

2000)). “[A]ccommodations are reasonable if they allow the

employee to perform the essential functions of the job without

imposing undue hardship on the employer.” Norden v. Samper, 503

F. Supp. 2d 130, 145 (D.D.C. 2007). The plaintiff bears the

burden to show that the requested accommodation is reasonable on

its face - - the sort of accommodation that normally occurs.

Graffius, 672 F. Supp. 2d at 129. When a plaintiff can make that

showing, the defendant must demonstrate special circumstances

that the accommodation would impose an undue hardship. Id.

“Undue hardship” in this context is “an action requiring

significant difficulty or expense[.]” 42 U.S.C. § 12111(10)(A);

see also 29 C.F.R. § 1630.15(d) (stating that “undue hardship” is

an affirmative defense).

According to the EPA, attendance at EPA offices was an

essential function of Morris’ position. Morris disagrees and

argues that she could perform all of the functions of her

position remotely from her home. Morris argues that Richards

undermines the EPA’s position that attendance at EPA worksites
 -16-

was an essential function of her position because he

“acknowledged that members of his staff have been allowed to work

from home on a case-by-case basis for limited or time-specific

periods.” Pl.’s Opp’n at 11. However, as the EPA points out,

Morris’ position description stated that it was “work station

oriented with normal movement throughout the office to perform

assigned tasks [and to use] dedicated specialized equipment,”

that Morris would be required to “coordinate document preparation

efforts and other information liaison specialists when size,

complexity and time constraints require a full team of people to

work on a single Federal Register document package,” and that

Morris would be responsible for providing any “necessary training

and/or assistance to Agency personnel working with regulatory

documents.” Def.’s Mem. at 19-20. In addition, Morris has not

pointed out that identically situated people with a position like

hers were allowed to work from home. Richards, Morris’

supervisor, stated that Morris’ presence in the EPA buildings was

“necessary” and that her job required interaction with the

Federal Register staff and with contractors and vendors that had

to occur in the EPA office space. See Richards’ Dep. at 35-37.

While Morris asserts that the EPA could have sent Federal

Register staff, contractors and vendors to her home, requesting

that accommodation would not be reasonable as a matter of law

because it would have eliminated an essential function of Morris’
 -17-

position, and would impose an undue burden on the agency. By

Morris’ own account, her home is “highly controlled” and “the

people . . . who come to the house on a regular basis” have to

“change their clothes and wash upon entering the house from the

outdoors.” Pl.’s Opp’n, Decl. of Connie Morris ¶ 18. An

accommodation that requires an agency to send contractors and

staff to an employee’s house where they would then be required to

change their clothing and wash would place an undue burden on the

agency.

Morris argues that the opinion in Woodruff v. Peters, 482

F.3d 521 (D.C. Cir. 2007), supports her assertion that her

request to telecommute was a reasonable accommodation. However,

unlike Morris, the plaintiff in Woodruff was asking merely to

extend workplace accommodations, namely being allowed to set his

own schedule and to take breaks in the middle of the day, that he

had been afforded “de facto” for roughly two years. Woodruff,

482 F.3d at 536. Morris has not presented evidence that she was

“de facto” afforded the ability to telecommute from her house for

the extended period of time for which she seeks as an

accommodation. Morris also argues that the EPA failed to engage

in good faith in the informal interactive process because it did

not “pursue[] the possibility of allowing [Morris] to work from

home on any basis, and/or within other governmental facilities.”

(Pl.’s Opp’n at 15.) However, the EPA attempted to pursue
 -18-

numerous accommodations for Morris that would have maintained the

essential functions of her position. The EPA did fail to provide

Morris with the accommodation she desired, but failure to provide

Morris with exactly the accommodation she requested is not, in

and of itself, evidence that the EPA did not engage in good faith

in the interactive process. In addition, it is uncontested that

Richards consulted with Morris and attempted to determine the

cause of her malady, tested the air in various worksites to find

one in which Morris could work, and purchased air purifiers and

air filters that Morris recommended. Def.’s Mem. at 4-5. Any

purported breakdown in the interactive process may have been

caused by Morris’ insistence on telecommuting, but no evidence

shows it was caused by any misfeasance or lack of good faith on

behalf of the EPA. Morris was unable to perform the essential

functions of her position with reasonable accommodations, and the

accommodation she demanded was not reasonable. The EPA’s motion

for judgment on Count 1 will be granted.

II. RETALIATION

In Count 2 of her amended complaint, Morris alleges that

from December 2004 until the time her employment was terminated,

the EPA retaliated against her for requesting a reasonable

accommodation by “taking adverse employment actions against her”

including terminating her employment. Am. Compl. ¶¶ 64-66.

However, Morris does not identify the adverse employment actions
 -19-

she was subjected to other than the termination of her

employment, and that Richards “stopped attempting to accommodate

her” and “required her to move into a small, exposed cubicle at

the Potomac Yards facility . . . [and] began demanding additional

medical documentation” in August 2005, after she filed her formal

complaint of discrimination. Pl.’s Opp’n at 26. The EPA moves

for judgment on this claim, arguing that Morris has not

identified a causal connection between the termination of her

employment and her protected activity.

“The elements of a claim of retaliation are that the

plaintiff engaged in a statutorily protected activity, the

employer treated the plaintiff adversely, and a causal connection

existed between the two.” Fields v. Geithner, 840 F. Supp. 2d

128, 137 (D.D.C. 2012) (citing Wiley v. Glassman, 511 F.3d 151,

155 (D.C. Cir. 2007) (internal citations omitted)). “‘Temporal

proximity’ between a complaint of discrimination and an adverse

action, such as termination, can ‘support a jury’s finding of a

causal link.’” Iweala v. Operational Techs. Servs., 634 F. Supp.

2d 73, 83 (D.D.C. 2009) (quoting Patterson v. Johnson, 505 F.3d

1296, 1299 (D.C. Cir. 2007)). “In order to qualify as related,

the temporal proximity of the harassment and protected activity

must be substantially close.” Graham v. Holder, 657 F. Supp. 2d

210, 216 (D.D.C. 2009); see also Harris v. D.C. Water & Sewer

Auth., 922 F. Supp. 2d 30, 35 (D.D.C. 2013) (holding that a five-
 -20-

month delay between protected activity and alleged retaliation

was “simply too long under this Circuit’s authority to establish

an inference of causation” based on temporal proximity); Tressler

v. National Railroad Passenger Corp., Civil Action No. 09-2027

(RLW), 2012 WL 5990035, at * 11 (D.D.C. November 30, 2012)

(holding that a delay of either five months or ten months between

protected activity and alleged retaliation was “too lengthy to

establish an inference of causation” based on temporal

proximity); Willingham v. Gonzales, 391 F. Supp. 2d 52, 61-62

(D.D.C. 2005) (holding that a six-month period between the

allegedly retaliatory action and the protected activity was not

temporally proximate); Payne v. Dist. of Columbia Gov’t, 722 F.3d

345, 354 (D.C. Cir. 2013) (stating that, in the context of the

District’s Whistleblower Protection Act, “[o]nce the time between

a protected disclosure and a negative employment action has

stretched to two-thirds of a year, there is no ‘temporal

proximity’ that supports a causal connection between the two”).

“Absent some tangible effect on the employee’s terms and

conditions of employment or other material harm, an employer's

request for medical documentation for the purpose of assessing an

employee’s credibility or determining an appropriate

accommodation is not an adverse employment action.” Koch, 759 F.

Supp. 2d at 76 (citing Dage v. Johnson, 537 F. Supp. 2d 43, 63-64

(D.D.C. 2008)).
 -21-

Here, Morris has not pointed to any actions by Richards that

could be construed as retaliation. While she claims that “the

words and conduct of [Richards] obstructed her efforts to do her

job,” Pl.’s Opp’n at 26, the record evidence shows that Richards,

if anything, attempted to facilitate Morris’ ability to perform

her job. In addition, Morris argues that roughly ten months

after she filed her formal complaint of discrimination, Richards

retaliated against her by moving her to a “small, exposed cubicle

at the Potomac Yards facility.” Pl.’s Opp’n at 26. However, too

much time passed between the protected activity and the purported

retaliatory act to support an inference of causation under a

theory of temporal proximity. Morris also fails to rebut the

EPA’s legitimate, non-discriminatory reason for terminating her

employment - - her decision to be absent without leave for 412

hours between August 2006 and December 2006.

CONCLUSION

The EPA has shown that Morris could not perform the

essential functions of her position with a reasonable

accommodation, that Morris’ proposed accommodation was not

reasonable, and that Morris has not established the elements to

support her claim of retaliation. Therefore, the EPA’s motion

will be granted and judgment will be entered for the EPA. An

appropriate final order accompanies this Memorandum Opinion.
 -22-

SIGNED this 30th day of October, 2013.

/s/
RICHARD W. ROBERTS
Chief Judge