UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
YVONNE M. BROOKS,
Plaintiff,
v.
HILLARY CLINTON, Civil Action No. 10-00646 (BAH)
Secretary of State, Judge Beryl A. Howell
U.S. Department of State,
Defendant.
MEMORANDUM OPINION
The plaintiff, Yvonne Brooks, is an African-American woman who worked as an
administrative officer for the State Department from November 2003 to March 2007 pursuant to
a contract that was renewable in one-year increments for a maximum period of five years. The
plaintiff’s supervisors decided not to renew her contract following its annual expiration in March
2007. Subsequently, the plaintiff brought this lawsuit against the State Department (“State”)
alleging that she was the victim of workplace discrimination. Specifically, the plaintiff alleges
that her supervisors subjected her to racially disparate treatment and a racially hostile work
environment, that State terminated her contract in retaliation for her seeking Equal Employment
Opportunity counseling, and that State failed to provide reasonable accommodation for an
alleged eye disability. The defendant has moved for judgment on the pleadings or, in the
alternative, for summary judgment on the plaintiff’s claims. The plaintiff opposes the
defendant’s motion. For the reasons explained below, summary judgment is denied on the
plaintiff’s retaliation claim and granted on all other claims.
I. BACKGROUND
The plaintiff filed this action against Hillary Clinton, in her official capacity as Secretary
of State, on April 26, 2010. Compl., ECF No. 1. The Complaint alleges that the defendant
violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
et seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981a, 42 U.S.C. § 1981, and the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., by unlawful and intentional discrimination
based on her race, retaliation, hostile work environment, and failure to accommodate her
physical disability. Id. ¶ 1.
The plaintiff began working for State in November 2003. Id. ¶ 11. She worked as an
Administrative Officer, Personnel Service Contractor to the Management Support Division
(“MSD”) at State’s Bureau of Overseas Buildings Operations (“OBO”). Id. The plaintiff’s
contract with State was a one-year contract that could be renewed in one-year increments up to a
total of five years. See Def.’s Ex. 1, hereinafter “Contract,” at 5, art. 5. The last renewal of her
contract was for the year commencing April 2, 2006 and ending March 31, 2007. Def.’s Ex. 1A
at 3.
Initially, the plaintiff’s immediate supervisor was Brian Clark and her second-line
supervisor was Roberto Coquis. Compl. ¶ 11. During 2004 and 2005, Coquis, who is a Hispanic
man, recognized the plaintiff’s work as “outstanding” and “exemplary” and she received awards
for her performance. See Pl.’s Exs. 4-13. Brian Clark left the OBO in 2005. Compl. ¶ 13. The
plaintiff applied for Clark’s position, but she was not selected. Id. ¶ 15. Instead, Coquis selected
2
David Spinale, who is a white man, to fill Clark’s former position. 1 Id. Spinale thus became the
plaintiff’s immediate supervisor. The plaintiff asserts that in July 2006, after Spinale became her
manager, her workplace environment changed and Spinale, along with Coquis, began subjecting
her to a hostile work environment and discrimination. Pl.’s Opp’n at 5; Compl. ¶ 16.
A. Racial Discrimination and Hostile Work Environment Allegations
The Court will first address the plaintiff’s allegations that her supervisors subjected her to
racially disparate treatment and a racially hostile work environment. The plaintiff, in her
opposition brief and the Complaint, identifies nine main categories of actions that allegedly
created a hostile work environment for her and constituted acts of racial discrimination. Pl.’s
Opp’n at 5; Compl. ¶¶ 24-32, 41.
First, the plaintiff alleges Spinale sent her “hostile” email that “challenged and criticized
her work product.” Pl.’s Opp’n at 5. For example, she contends that Spinale “falsely” claimed
that her “work-related reports were not substantially detailed and were sometimes submitted
late.” Id. at 6.
Second, the plaintiff cites a “hostile” email received from Coquis in November 2006 that
described her work as “crap.” Id. at 5. Coquis inadvertently sent this email to the plaintiff. Id.
at 8-9. In a private email to a third-party, the plaintiff acknowledged that Coquis likely intended
to send this “hostile” email to her immediate supervisor, Spinale, rather than to her, but she also
1
The plaintiff is not pursuing a claim based upon her non-promotion to Clark’s position, but she “notes this event as
part of the disparate treatment and hostile work environment.” Pl.’s Mem. in Opp’n to Def.’s Mot. for J. on the
Pleadings or for Summ. J., ECF No. 30 (“Pl.’s Opp’n”), at 1 n.1. The plaintiff also alleges in her Complaint that the
defendant “further discriminated” against her when, on or around March 2007, he promoted a white woman to
assume the plaintiff’s duties even though the white woman allegedly lacked the proper credentials. Compl. ¶ 27.
The Court assumes that the plaintiff is also not pursuing that claim as she offers no development of it beyond the
undeveloped and cursory allegation in the Complaint.
3
added that Coquis’s email represented “[j]ust more ammo for my case and how he is so
unprofessional.” Pl.’s Ex. 30.
Third, the plaintiff claims she received unwarranted discipline regarding computer use.
Compl. ¶¶ 20-21; Pl.’s Opp’n at 6. In late November 2006, the plaintiff received a negative
counseling statement for allegedly saving two inappropriate images on a State Department hard
drive. Compl. ¶ 20; Pl.’s Opp’n at 6. Apparently, one of the images was labeled “Spiderman”
and the other depicted an aborted fetus. See Def.’s Stmt. of Mat. Facts Not in Dispute (“Def.’s
SMF”), ¶ 11. Coquis had previously cautioned the plaintiff about inappropriate computer use in
May 2006 when the plaintiff circulated an email containing racial jokes with the subject line
“FW: Ten Truths.” Id. ¶ 10. The body of the email message contained lists of “10 Truths Black
and Hispanic people know but White people wont [sic] admit,” “10 Truths White and Black
People know but Hispanic people wont [sic] admit,” and “10 Truths white and Hispanic people
know but Black people wont [sic] admit.” Id. ¶ 10; see Def.’s Ex. 9 (“10 Truths” email and
response from Coquis). The plaintiff disputes that the racial jokes email “was an inappropriate
email because Coquis knew that other employees in his office forwarded email containing
humorous material.” Pl.’s Resp. to Def.’s SMF (“Pl.’s SMF Resp.”) ¶ 10. The plaintiff also
denies knowledge of the inappropriate images found on her computer, pointing to the fact that, at
Coquis’s alleged instruction, she allowed other employees to use her computer login. Id. ¶ 11;
Pl.’s Opp’n at 7. She contends that Coquis’s instruction to allow others to use her login also
constituted part of the hostile work environment and discrimination. Pl.’s SMF Resp. ¶ 11; Pl.’s
Opp’n at 6-7.
Fourth, the plaintiff alleges she was charged for leave without pay for two hours when
she had paid leave available. Compl. ¶ 32B.
4
Fifth, the plaintiff alleges that the defendant refused to reimburse her fully for travel
expenses related to her attendance at a “Blacks in Government” conference. Id. ¶ 32A. It is
undisputed, however, that the plaintiff ultimately received reimbursement for all travel expenses
except for a $70 taxi fare for which the plaintiff produced no documentation. Def.’s SMF ¶ 9;
Pl.’s SMF Resp. ¶ 9.
Sixth, she alleges that her supervisors required her to submit daily reports of her work,
but that other MSD administrative employees were not required to do so. Compl. ¶ 32H.
Seventh, she alleges that her supervisors required her to turn in her government-issued
cell phone in September 2006, but that white employees were not required to do so. Pl.’s Opp’n
at 7-8.
Eighth, the plaintiff alleges that she was not allowed to attend a training seminar that she
had previously been told she could attend. Compl. ¶ 32J.
Finally, the plaintiff claims that the termination of her employment was the “ultimate act
of discrimination . . .” Compl. ¶ 41.
B. Allegations Of Failure To Accommodate Disability
In addition to her claims of a hostile work environment and discrimination, the plaintiff
alleges that the defendant “failed to reasonably accommodate [the plaintiff’s] severe eye
disability, despite her repeated requests for an accommodation.” Id. ¶ 34. The plaintiff contends
that she has an eye condition known as iritis that “sometimes causes inflammation, inability to
see, and blurred vision,” and that “interferes with her ability to do many things, including
looking at a computer screen, reading small print, and performing other activities that require
acute visual acuity.” Pl.’s Opp’n at 9.
5
The plaintiff provided the defendant with three doctor’s notes regarding her eye
condition. Def.’s SMF ¶ 20; Pl.’s SMF Resp. ¶ 20. 2 The first note, dated January 20, 2006,
stated that the plaintiff’s eyes were dilated and she would have problems focusing for six to
twelve hours. Pl.’s Ex. 36. It also stated “Pt is being treated for a serious eye problem & will
need to be excused until resolution or able to keep eyes open.” Id. The second note, dated
January 24, 2006, indicated that the plaintiff was being treated for a severe eye condition
reducing her visual acuity. Def.’s Ex. 14 at 11. The note asked that this be taken into account
when tasks were assigned to the plaintiff and indicated that the plaintiff was on light duty. Id.
The third note – dated September 24, 2007, several months after the end of the plaintiff’s tenure
at State – purports to convey the contents of a prior note provided to the plaintiff’s employer in
December 2006 that stated the plaintiff “is being treated for a chronic severe eye condition (since
April ’06) that decreases visual acuity. Please keep this in mind when assigning tasks until
resolution or improvement occurs.” Pl.’s Ex. 35.
The plaintiff contends she requested a reasonable accommodation for her eye disability
on December 15, 2006 and thereafter by requesting that a portion of her duties involving the
review of PowerPoint slides created by other managers be reassigned to another employee.
Compl. ¶¶ 37-40. The plaintiff alleges that Coquis and Spinale refused to even entertain this
request for reasonable accommodation. Id.
2
These three doctors’ notes were originally introduced by the defendant, who moved for the documents to be filed
under seal. Def.’s Ex. 14 at 10-12, ECF 21-22. This motion was granted. Minute Order (Mar. 28, 2011). The
plaintiff later filed two of the three doctors’ notes on the docket as unsealed exhibits to her Memorandum in
Opposition to the instant motion. Pl.’s Ex. 35-36, ECF 32.
6
C. Retaliation Allegations
The plaintiff also alleges that Coquis and Spinale retaliated against her for engaging in
protected Equal Employment Opportunity (“EEO”) activity by declining to renew her contract.
Id. ¶¶ 41-42. The plaintiff contends that she first informally complained to an EEO counselor,
Anita Carey, on November 16, 2006. Pl.’s SMF Resp. ¶ 22; Pl.’s Ex. 44. The plaintiff also
asserts that she complained to Coquis about alleged harassment in October 2006 and on other
dates. Pl.’s Ex. 61, Affidavit of Yvonne M. Brooks, sworn to Sept. 28, 2007 (“Brooks Aff.”) ¶
79; Pl.’s Ex. 44. On January 26, 2007, the plaintiff submitted an “informal” EEO complaint
letter to the director of OBO, General Williams. Brooks Aff. ¶ 106. The plaintiff was notified
that her contract would not be renewed in February 2007, although the record shows that Coquis
decided not to renew the plaintiff’s contract on November 24, 2006. Brooks Aff. ¶¶ 107-109;
Def.’s Ex. 15. The plaintiff formally sought EEO counseling on March 13, 2007. Def.’s SMF ¶
22; Pl.’s SMF Resp. ¶ 22. The plaintiff’s contract expired on March 31, 2007. Def.’s Ex. 1A at
3.
D. Relief Sought
The plaintiff’s Complaint alleges four counts: Retaliation (Count I), Racial
Discrimination (Count II), Failure to Reasonably Accommodate Disability (Count III), and
Hostile Work Environment (Count IV). Compl. ¶¶ 43-49. Based on these counts, the plaintiff
seeks reinstatement, back pay with interest and benefits, compensatory damages, record
correction, and an injunction against further discrimination and retaliation. Id. ¶ 50.
E. Procedural History
This case was reassigned to the undersigned presiding judge on January 20, 2011. The
Court held an initial scheduling conference on February 11, 2011, and issued a scheduling order
7
on February 17, 2011. See ECF No. 13. The scheduling order provided that the “parties shall
have until April 4, 2011 to file any dispositive motions that will be filed prior to the end of
discovery.” Id. The Court also bifurcated discovery into a written discovery phase and a
deposition discovery phase. Id. Under the scheduling order, written discovery began on March
4, 2011, but deposition discovery was not to begin until the Court’s resolution of any dispositive
motions filed by April 4, 2011. Id. The scheduling order also provided that “[i]n accordance
with the agreement of both parties in their separate proposed scheduling orders filed on February
15, 2011 . . . [a]dditional parties shall be joined or pleadings amended by March 4, 2011.” Id.
On March 4, 2011, the defendant filed an amended answer. ECF No. 16. On March 21,
2011, the plaintiff filed a motion to strike the defendant’s amended answer as untimely because
the defendant did not obtain leave of court or the consent of the plaintiff to file the amended
answer. ECF No. 20. In response, on March 30, 2011, the defendant filed a motion for leave to
amend its answer nunc pro tunc on March 4, 2011. ECF No. 24. The defendant stated that it did
not seek leave of court or the plaintiff’s consent to file its amended answer because it interpreted
the Court’s scheduling order, which provided that “[a]dditional parties shall be joined or
pleadings amended by March 4, 2011,” as prospectively authorizing the amendment. See id.
The plaintiff is correct that the Federal Rules of Civil Procedure required the defendant to seek
leave of court to file an amended pleading. Fed. R. Civ. P. 15(a)(2) (if 21 days after service of a
pleading has elapsed, “a party may amend its pleading only with the opposing party’s written
consent or the court’s leave.”). The Court’s scheduling order, consistent with the parties’ own
agreement, see ECF Nos. 11-12, authorized the filing of any motion proposing amendment of the
pleadings until March 4, 2011. ECF 13. See Fed. R. Civ. P. 16(b)(3)(“The scheduling order
must limit the time to . . . amend the pleadings . . .”).
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Motions to amend pleadings filed within the time set by a scheduling order are subject to
review under the standard of Rule 15, which instructs that the “court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). By contrast, such motions filed after a
scheduling order deadline has passed are subject to the more stringent “good cause” standard of
Rule 16(b)(4) for modification of a scheduling order. Cf. KG Litig. v. Samsung Techwin Co. (In
re Papst Licensing GmbH & Co.), 762 F. Supp. 2d 56, 59 (D.D.C. 2011) (good cause standard of
Rule 16 applies to motion for leave to amend a pleading after a scheduling order deadline has
passed); Lurie v. Mid-Atlantic Permanente Med. Group, P.C., 589 F. Supp. 2d 21, 23 (D.D.C.
2008) (same, explaining “[t]o hold otherwise would allow Rule 16's standards to be short
circuited by those of Rule 15 and would allow for parties to disregard scheduling orders, which
would undermine the court's ability to control its docket, disrupt the agreed-upon course of the
litigation, and reward the indolent and the cavalier.” ) (citation and internal quotation marks
omitted). The defendant in this case was intending to comply with, not cavalierly disregard, the
scheduling order for amendment of pleadings. The defendant simply misconstrued its
obligations under the scheduling order and, upon this discovery, promptly cured the defect with
an appropriate motion. In these circumstances, the Court finds that the defendant satisfies both
standards under Rules 15(a) and 16(b). Accordingly, the Court denies the plaintiff’s motion to
strike the amended answer, grants the defendant’s motion for leave to amend its answer nunc pro
tunc on March 4, 2011, and will treat the defendant’s amended answer as filed on March 4, 2011.
On March 21, 2011, the defendant filed a motion for judgment on the pleadings or, in the
alternative, for summary judgment. ECF No. 19. This motion is presently before the Court. For
the reasons explained below, summary judgment is granted in part and denied in part.
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II. STANDARD OF REVIEW
The defendants have moved pursuant to Federal Rule of Civil Procedure 12(c) for
judgment on the pleadings, or, alternatively, for summary judgment pursuant to Federal Rule of
Civil Procedure 56. In deciding a motion under Rule 12(c), “courts employ the same standard
that governs a Rule 12(b)(6) motion to dismiss.” Lans v. Adduci Mastriani & Schaumberg
L.L.P., 786 F. Supp. 2d 240, 265 (D.D.C. 2011) (citation omitted). “[T]he Court may not rely on
facts outside the pleadings and must construe the complaint in the light most favorable to the
non-moving party.” Id. If, on a motion under Rule 12(c), “matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56.” Fed. R. Civ. P. 12(d); see also Vest v. Dep’t of the Air Force, 793 F.
Supp. 2d 103, 112 (D.D.C. 2011); Dormu v. District of Columbia, 795 F. Supp. 2d 7, 17 n.4
(D.D.C. 2011); Strong-Fischer v. Peters, 554 F. Supp. 2d 19, 22 (D.D.C. 2008). Since matters
beyond the pleadings will be considered here, the defendant’s motion will be treated as one for
summary judgment.
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate “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” based upon the pleadings, depositions, and affidavits and other
factual materials in the record. Fed. R. Civ. P. 56(a), (c); Ali v. Tolbert, 636 F.3d 622, 628 (D.C.
Cir. 2011); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). In evaluating the record, the Court
“need consider only the cited materials, but it may consider other materials in the record.” Fed.
R. Civ. P. 56(c)(3). “At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Scott v.
Harris, 550 U.S. 372, 380 (2007) (citation and quotation marks omitted). The burden is on the
10
moving party to demonstrate that there is an “absence of a genuine issue of material fact” in
dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
III. DISCUSSION
A. Racial Discrimination Claims
The plaintiff has alleged that various actions by her supervisors constituted discrete acts
of racial discrimination and also combined to create a hostile work environment based on race.
These two theories of discrimination are independently actionable under Title VII. The Court
will first analyze the plaintiff’s claims of racial discrimination and will then address her hostile
work environment claims.
1. Legal Standard
“Title VII of the Civil Rights Act, as amended, provides that all ‘personnel actions
affecting employees or applicants for employment’ in Executive agencies ‘shall be made free
from any discrimination based on race.’” Jackson v. Gonzales, 496 F.3d 703, 706 (D.C. Cir.
2007) (quoting 42 U.S.C. § 2000e-16(a)). “Under Title VII . . . the two essential elements of a
discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because
of the plaintiff’s race, color, religion, sex, [or] national origin. . .” Baloch v. Kempthorne, 550
F.3d 1191, 1196 (D.C. Cir. 2008). An adverse employment action generally entails a “tangible
employment action evidenced by firing, failing to promote, a considerable change in benefits, or
reassignment with significantly different responsibilities.” Stewart v. Ashcroft, 352 F.3d 422,
426 (D.C. Cir. 2003). “Where, as here, the record contains no direct evidence that the adverse
employment action of which the plaintiff complains was caused by prohibited discrimination, we
turn to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
05 (1973), to analyze the claim.” Jackson, 496 F.3d at 706 (quoting Holcomb v. Powell, 433
11
F.3d 889, 895 (D.C. Cir. 2006)). “Although intermediate evidentiary burdens shift back and
forth under this framework, the ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id.
(internal quotation marks and alteration omitted). Where an employer has asserted legitimate,
non-discriminatory reasons for the actions being challenged,
the district court need not - and should not - decide whether the plaintiff actually
made out a prima facie case under McDonnell Douglas. Rather, in considering an
employer’s motion for summary judgment . . . 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 race, color, religion, sex, or national origin?
Diggs v. Potter, 700 F. Supp. 2d 20, 40 (D.D.C. 2010) (quoting Brady v. Office of Sergeant at
Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)); see also Hamilton v. Geithner, No. 10-5419, 2012
WL 119134, at *5 (D.C. Cir. Jan. 17, 2012).
2. Analysis of the Challenged Actions
As discussed above, the plaintiff, in her opposition brief and Complaint, alleges nine
categories of actions in which she experienced racial discrimination and a hostile work
environment. Pl.’s Opp’n at 5; Compl. ¶¶ 24-32, 41. The Court will address each of these
alleged instances or categories seriatim below.
i. Hostile Email From Spinale
The plaintiff claims that her immediate supervisor, Spinale, treated her more harshly than
white employees by sending her “harassing emails” that “challenged and criticized her work
product.” Pl.’s Opp’n at 5. For example, the plaintiff states that “Spinale falsely claimed that
Ms. Brooks’ work-related reports were not substantially detailed and were sometimes submitted
late.” Id. at 6. These emails cannot sustain a discrimination claim, among other reasons,
12
because they do not constitute an adverse employment action. An “adverse employment action”
requires a showing of “materially adverse consequences affecting the terms, conditions, or
privileges of [plaintiff’s] employment or future employment such that a trier of fact could find
objectively tangible harm.” Doe v. Roberts, No. 09-2349, 2011 WL 6257234, at *3 (D.D.C.
Dec. 14, 2011) (internal emphasis omitted). The plaintiff here has merely alleged that her
supervisor supervised and critiqued her work. Such supervisory acts cannot constitute an
adverse employment action because there is no showing of any materially adverse consequences
to the terms, conditions, or privileges of employment.
ii. Hostile Email From Coquis
Next, the plaintiff alleges that a “hostile” email from Coquis constituted discrimination.
This email, which Coquis sent in response to a weekly work report created by the plaintiff,
stated, in its entirety, “This is crap. This is what she should be doing in 1 day!!!!” Pl.’s Ex. 30.
It appears undisputed – and it is obvious from the text of the email itself – that Coquis
inadvertently sent this email to the plaintiff. Coquis has explained that this email resulted from
frustration with the plaintiff’s work quality, and that he “recognized that the comments were
inappropriate and apologized for the comments. . .” Def.’s Ex. 2., Affidavit of Robert J. Coquis,
sworn to Dec. 12, 2007 (“Coquis Aff.”) ¶ 60. In any event, this email also did not constitute an
adverse employment action because it also did not rise to the level of a material change to the
plaintiff’s terms or conditions of employment.
iii. Discipline Regarding Computer Use
The plaintiff contends that her supervisors discriminated against her by giving her two
“negative counseling statements indicating that she saved two inappropriate images, including
one labeled Spiderman.jpg, on an Agency-owned computer hard drive.” Pl.’s Opp’n at 6-7. The
13
plaintiff denies she saved these images and complains that her supervisors discriminated against
her by advising her to allow other staff to log in under her computer profile. Id. at 5-7. The
disciplinary citations the plaintiff received – as well as the alleged direction to allow other staff
to use her computer – would not, on their own, be adverse employment actions. Hyson v.
Architect of Capitol, 802 F.Supp.2d 84, 102 (D.D.C. 2011) (“A letter of counseling, written
reprimand, or unsatisfactory performance review, if not abusive in tone or language or a
predicate for a more tangible form of adverse action, will rarely constitute materially adverse
action under Title VII.”)
iv. Denial of Leave
The plaintiff has alleged that on December 12, 2006, December 15, 2006, and “several
other dates,” the defendant charged her with leave without pay because of her race. Compl. ¶
32B; Pl.’s Opp’n at 5. The plaintiff states that, on December 12, 2006, she submitted a request
to Spinale and Coquis for one hour of sick leave for the following day, December 13, 2006.
Brooks Aff. ¶ 100. Coquis did not review this request until December 14, 2006, id. ¶ 102, and
denied the request because the plaintiff had not provided advance notice of the request by phone
or by email, id. A similar sequence of events unfolded regarding another hour of leave the
plaintiff requested for December 15, 2006. Id. ¶ 104. The plaintiff claims she was charged for
leave without pay for these two hours, despite the fact that she had available sick leave. Id. ¶¶
104-105. Coquis justified his decision to deny the leave by explaining that “[i]n the past, [the
plaintiff] had provided email or phone notification if she had to depart the office for an
emergency . . . and the leave was always approved,” but that “[e]ventually [she] began to be
14
negligent on providing prior notification of her need to be out of the office,” which led to the
December 2006 leave disputes. 3 Coquis Aff. ¶ 26.
In the plaintiff’s response to the defendant’s statement of material facts, she states that it
“was customary for employees to request emergency leave by phone as Brooks did and other
employees, including Nicolette Schmidt, a White female, routinely requested leave by telephone
and that leave was approved.” Pl.’s SMF Resp. ¶ 17. This response is puzzling, however,
because the record evidence to which the plaintiff cites, pages 30-32 of the plaintiff’s affidavit,
clearly states that the plaintiff requested the leave “via courier” and not by phone, and that
Coquis denied the request precisely because the plaintiff did not provide notice by phone or
email. Brooks Aff. ¶¶ 100-104. Coquis confirms this account in his own affidavit, where he
explains that he denied the leave because she did not provide advance notification of her request
by email, phone, or by updating the office leave calendar. Coquis Aff. ¶ 26.
In any event, the denial of two hours of leave is not sufficiently significant to constitute
an adverse employment action. 4 See Dorns v. Geithner, 692 F. Supp. 2d 119, 129 (D.D.C.
2010) (“[T]he denial of the plaintiff’s request to take three hours of advanced sick leave or leave
without pay, do[es] not rise to the level of adverse employment actions under Title VII.”);
Threatt v. Donovan, 380 Fed. App’x 544, 548 (7th Cir. 2010) (employee charged with two hours
of being absent without leave did not establish adverse employment action). Moreover, the
3
There is some discrepancy over the precise type of leave the plaintiff requested. Compare Coquis Aff. ¶ 27
(referring to request for “annual leave” on December 13, 2006) with Brooks Aff. ¶ 100 (referring to request for “sick
leave” for that date). This discrepancy is immaterial here.
4
To the extent that the Complaint references other unspecified incidents of denial of leave, these claims are not
explained in the plaintiff’s response to the defendants’ statement of material facts not in dispute or in the plaintiff’s
opposition.
15
defendant has presented a legitimate, non-discriminatory explanation for the denial of leave and
there is insufficient evidence to show that the real reason for the denial was the plaintiff’s race.
v. Reimbursement of Travel Expenses
The plaintiff claims discrimination because the defendant “[r]efused to reimburse her for
full travel expenses” relating to her attendance at a “Blacks in Government” conference in 2006.
Pl.’s Opp’n at 5; Compl. ¶ 32A. Notably, the plaintiff was one of only three employees Coquis
selected to attend this conference. See Def.’s Ex. 7 at 1 (April 20, 2006 memo from Coquis
noting that it was “a very challenging decision” to select the conference attendees). In advance
of the conference, Coquis requested that “all receipts” be submitted for expense reimbursements.
Id. Although initially the plaintiff’s reimbursement claims were denied, it is undisputed that the
plaintiff ultimately received reimbursement for all travel expenses except for a $70 taxi fare for
which the plaintiff produced no documentation. Def.’s SMF ¶ 9; Pl.’s SMF Resp. ¶ 9. The
plaintiff contends that agency regulations do not require documentation for this $70 expense,
Pl.’s SMF Resp. ¶ 9, but Coquis did request “all receipts” for expenses in advance of the
conference, Def.’s Ex. 7 at 1. The Court finds this episode cannot constitute an adverse
employment action. Moreover, the defendant has asserted a legitimate, non-discriminatory
reason for not reimbursing this expense – lack of documentation in violation of his April 20,
2006 request for receipts, and there is no evidence to support an inference that racial
discrimination was the real reason for the denial of reimbursement.
vi. Daily Work Reports
The plaintiff also claims discrimination because her supervisors required her to submit
daily reports of her work. Coquis has stated that he imposed this requirement in December 2006
because he “was not satisfied that [the plaintiff] sufficiently understood her responsibilities. . . .”
16
Coquis Aff. ¶ 62. The requirement to submit reports regarding the status of her work does not
constitute an adverse employment action. See Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir.
2009) (holding that requiring plaintiff to “submit biweekly reports on the status of her work” was
not an adverse employment action, but rather a minor inconvenience and alteration of
responsibilities); Ali v. District of Columbia Government, No. 08-01950, 2011 WL 4063234, at
*6 (D.D.C. Aug. 31, 2011) (requirement to write special reports not an adverse employment
action).
vii. Discontinuation of Work-Provided Cellular Phone
The discontinuation of the plaintiff’s work-issued cellular telephone also does not
constitute an adverse employment action. See O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th
Cir. 2004) (lateral transfer resulting in, inter alia, loss of work-provided cell phone did not
constitute adverse employment action). In addition, the defendant has provided a legitimate,
non-discriminatory explanation for discontinuing the plaintiff’s work-issued phone and there is
no evidence that race was the real reason for the decision. According to the defendant, the
plaintiff’s cell phone was discontinued following a Bureau-wide review of cell phone use and the
decision to discontinue her phone relied on factors including the plaintiff’s “history of not
carrying her cell phone, not answering her cell phone, and, at one time, a history of cell phone
abuse.” Coquis Aff. ¶ 61; see also Def.’s Ex. 11 (2004 warning letters regarding the plaintiff’s
excessive cell phone use and 2006 notice regarding the disappearance of the plaintiff’s phone).
viii. Denial of Attendance at Training Seminar
The plaintiff alleges that she was denied approval to attend a training seminar that she
had originally been cleared to attend. Pl.’s Opp’n at 5; Compl. ¶ 32J. This allegation does not
constitute an adverse employment action either. Doe, 2011 WL 6257234, at *3 (“[T]he denial of
17
a single training or travel opportunity does not constitute an adverse employment action unless
the plaintiff can tie the alleged discriminatory employment action to some actual, tangible
adverse employment consequence.”) (citation and internal quotation marks omitted).
ix. Non-Renewal of the Plaintiff’s Contract
The plaintiff alleges that the “ultimate act of discrimination” was the termination of her
contract. Compl. ¶ 41. The question for the Court is whether there is “sufficient evidence for a
reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual
reason [for the non-renewal of the plaintiff’s contract] and that the employer intentionally
discriminated against the employee on the basis of race. . . .” Brady, 520 F.3d at 494. 5
The answer to this key question is no. Given the record evidence, no reasonable jury
could find that the plaintiff’s employer intentionally discriminated against her based on race in
declining to renew her contract. First, the defendant has advanced legitimate, non-discriminatory
reasons for the non-renewal of the plaintiff’s contract, including that the office “re-prioritized
support service deliverables and [the plaintiff’s position] was no longer providing value to our
mission . . . [and] has not been re-advertised nor filled” since the plaintiff’s departure. Coquis
Aff. ¶ 39. The defendant has, for example, cited the plaintiff’s inappropriate computer use as
one of the reasons for the non-renewal of the plaintiff’s contract. See Coquis Aff. ¶ 39. Second,
setting aside the issue of the two inappropriate computer images for which the plaintiff denies
responsibility, the defendant’s explanation for the non-renewal of the plaintiff’s contract also
cited the plaintiff’s circulation of “inappropriate racial jokes” for which Coquis cautioned her in
May 2006. Coquis Aff. ¶ 39. It is undisputed that the plaintiff circulated these racial jokes using
5
The parties have not addressed whether the non-renewal of the plaintiff’s contract was an adverse employment
action but the Court will assume it is for the purpose of deciding the instant motion.
18
her State Department email account and that Coquis promptly counseled her that this email was
inappropriate. See Def.’s Ex. 9 (racial jokes email and cautionary response from Coquis).
Indeed, this incident represents the only conduct in the record with overt racial overtones.
Viewing the record as a whole, there is simply no evidence to support any inference of racial
discrimination against the plaintiff. To the contrary, racial discrimination here would be
particularly surprising since Coquis himself previously lauded the plaintiff’s work in earlier
years, describing her prior work as “outstanding” and recognizing her prior contributions with
performance awards. Cf. Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011)
(noting that “[i]f [the supervisor] did not want to work with [plaintiff] because of her race or
gender, it would be odd to select her and then immediately start ginning up reasons to dismiss
her.”).
Summary judgment for the defendant is appropriate where, as here, the defendant has
advanced a legitimate, non-discriminatory reason for the challenged action and there is
insufficient evidence for a reasonable jury to find that the employer’s asserted non-
discriminatory reason was not the actual reason for the action. See Brady, 520 F.3d at 494.
B. Hostile Work Environment Claims
While none of the individual incidents of purported discrimination alleged by the plaintiff
can survive the defendant’s motion for summary judgment, the plaintiff also argues that all of
these incidents combined created a hostile work environment, which is an actionable form of
discrimination under Title VII. Summary judgment for the defendant is also appropriate on the
plaintiff’s hostile work environment claim.
“It is unlawful to ‘requir[e] people to work in a discriminatorily hostile or abusive
environment.’” Douglas-Slade v. LaHood, 793 F. Supp. 2d 82, 100 (D.D.C. 2011) (quoting
19
Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)). In order to prevail on a hostile work
environment claim, a plaintiff must show that her workplace “is permeated with ‘discriminatory
intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working environment’” Id. (quoting Harris,
510 U.S. at 21). “To determine whether a hostile work environment exists, the court looks to the
totality of the circumstances, including the frequency of the discriminatory conduct, its severity,
its offensiveness, and whether it interferes with an employee’s work performance.” Id. at 101
(quoting Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)). “Isolated incidents do
not form a hostile work environment claim.” Id.
The plaintiff’s relationship with her supervisors plainly deteriorated during the last
several months of the plaintiff’s employment. “Nothing in the record suggests, however, that
plaintiff endured intimidation, ridicule, insult, or other behavior that was offensive, pervasive,
severe, or abusive.” Id. Rather, the plaintiff’s complaints relate primarily to the management
style of her supervisors, and “such assertions cannot support a hostile work environment claim.”
Id. (citing Allen v. Napolitano, 774 F. Supp. 2d 186, 205-06 (D.D.C. 2011)); see also Johnson v.
Bolden, 699 F. Supp. 2d 295, 302 (D.D.C. 2010) (“[N]early all of plaintiff’s allegations of a
hostile work environment, even if taken as true, amount to nothing more than plaintiff’s
objections to the management style of [the supervisors in] his chain of command”). The
plaintiff’s claims that Spinale and Coquis criticized her work product, required her to submit
daily work reports, denied her request to attend a training seminar, denied requests for leave
unless she gave advance notice by phone or by email, and discontinued her work-issued cell
phone all fall under this category.
20
Moreover, there must be a “linkage between the hostile behavior and the plaintiff’s
membership in a protected class for a hostile work environment claim to proceed.” Douglas-
Slade, 793 F. Supp. 2d at 101 (citing Na’im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C. 2009)).
The plaintiff, however, fails to make any linkage. As discussed above, the only conduct in the
record with overt racial overtones is the plaintiff’s own emailing of racial jokes in May 2006, for
which Coquis cautioned her. In addition, it is unlikely that Coquis would have discriminated
against the plaintiff based on race, given his prior praise and support for her work.
“Hostile work environment claims are not meant to set a general code for the workplace.”
Id. at 101-102 (citation omitted). “Even an employee who reports discriminatory behavior is not
immunized from those petty slights or minor annoyances that often take place at work and that
all employees experience.” Id. at 101 (quoting Kelly v. Mills, 677 F. Supp. 2d 206, 222 (D.D.C.
2010)). The plaintiff “cannot convert ordinary tribulations of the workplace . . . into an
actionable hostile work environment claim.” Id. at 102. In sum, the factual allegations and
evidence in the record here are insufficient to enable a reasonable jury to find that the plaintiff
experienced a workplace permeated with discriminatory intimidation, ridicule, and insult that
was sufficiently severe or pervasive to alter the conditions of her employment. Accordingly,
summary judgment will be entered for the defendant on the plaintiff’s hostile work environment
claims.
C. Retaliation Claims
The plaintiff also alleges that Coquis and Spinale retaliated against her for engaging in
protected EEO activity by declining to renew her contract. Compl. ¶¶ 41-42. The record shows
that Coquis decided not to renew the plaintiff’s contract on November 24, 2006. Def.’s Ex. 15.
The plaintiff was notified that her contract would not be renewed in February 2007. Brooks Aff.
21
¶¶ 107-109. The defendant argues that the plaintiff cannot state a claim for retaliation because
the plaintiff did not formally seek EEO counseling until March 13, 2007, after the plaintiff was
notified of the decision not to renew the plaintiff’s contract. Def.’s SMF ¶ 22; Pl.’s SMF Resp. ¶
22. The plaintiff contends, however, that she previously complained to an EEO counselor, Anita
Carey, on November 16, 2006. Pl.’s SMF Resp. ¶ 22; Pl.’s Ex. 44. The record also reflects the
plaintiff’s claims that she complained to Coquis about alleged harassment in October 2006 and
on other dates. Brooks Aff. ¶ 79; Pl.’s Ex. 44.
The legal framework for demonstrating retaliation under Title VII is similar to the
framework for establishing discrimination. A prima facie case of retaliation requires a plaintiff
to show that “(1) he engaged in protected activity; (2) he was subjected to an adverse
employment action; and (3) there was a causal link between the protected activity and the
adverse action.” 6 Hamilton v. Geithner, 2012 WL 119134, at *11 (quoting Woodruff v. Peters,
482 F.3d 521, 529 (D.C. Cir. 2007)); Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007).
“Once the plaintiff has made a prima facie case, the burden shifts to the defendant to articulate
some legitimate, nondiscriminatory reason for the challenged employment action.” Bright v.
Copps, No. 08-755, 2011 WL 6123470, at *7 (D.D.C. Dec. 9, 2011) (citation, quotation marks,
and alteration omitted). “However, the D.C. Circuit has stressed that once an employer has
proffered a nondiscriminatory reason, the McDonnell Douglas burden-shifting framework
disappears, and the court must simply determine whether the plaintiff has put forward enough
evidence to defeat the proffer and support a finding of retaliation.” Id. (citing Woodruff, 482
F.3d at 530). “Where, as here, the employer has proffered a legitimate, [non-retaliatory] reason
6
As with the plaintiff’s discrimination claim, the defendant has not argued that the non-renewal of the plaintiff’s
contract was not an adverse employment action and, therefore, the Court will assume that it is an adverse
employment action for the purposes of deciding this motion.
22
for a challenged employment action, the central question is whether the employee produced
sufficient evidence for a reasonable jury to find that the employer's asserted [non-retaliatory]
reason was not the actual reason and that the employer intentionally [retaliated] against the
employee in violation of Title VII.” McGrath v. Clinton, No. 10-5043, 2012 WL 247996, at *5
(D.C. Cir. Jan. 27, 2012) (citation and quotation marks omitted).
The defendant argues that the plaintiff cannot state a claim for retaliation because the
plaintiff did not formally seek EEO counseling until March 13, 2007, but “[i]t is well settled that
Title VII protects informal, as well as formal, complaints of discrimination.” Richardson v.
Gutierrez, 477 F. Supp. 2d 22, 27 (D.D.C. 2007) (citing cases); see also Bell v. Gonzales, 398 F.
Supp. 2d 78, 94 (D.D.C. 2005) (“Initiation of EEO counseling to explore whether an employee
has a basis for alleging discrimination constitutes protected activity, even in the absence of an
unequivocal allegation of discrimination.”).
The plaintiff alleges that she sought informal EEO counseling before November 24,
2006, the day on which Coquis decided not to renew her contract. Def.’s Ex. 15. While the
plaintiff’s evidence amounts to little more than her bare assertion with only limited
corroboration, the Court at this stage must view the evidence in the light most favorable to the
plaintiff. In doing so, the Court concludes that a reasonable jury could find for the plaintiff. The
plaintiff asserts that on November 16, 2006, she contacted an EEO counselor, Anita Carey, about
her complaints of discrimination. Pl.’s SMF ¶ 1; Pl.’s SMF Resp. ¶ 22; Pl.’s Ex. 44; Pl.’s Ex. 48.
Plaintiff’s Statement of Material Facts states that “Ms. Brooks complained about discrimination
to her second level supervisor, third level supervisor, Anita Cary, and Agency EEO counselor in
November 2006.” Pl.’s SMF ¶ 1. Plaintiff’s Response to Defendant’s Material Facts Not in
Dispute reemphasizes that plaintiff spoke with an EEO Counselor in November 2006. Pl.’s SMF
23
Resp. ¶ 22. 7 The evidentiary support for plaintiff’s claim is contained in two exhibits. See Pl.’s
Ex. 44; Pl.’s Ex. 48. Plaintiff’s Exhibit 44 consists of a single page, page 15, of an EEO
“Counselor’s Report.” See Def. Ex. 3 for the complete report (EEO Counselor’s Report, dated
June 8, 2007). The document includes the following statement from the plaintiff: “I have been
trying to file an EEO Complaint since November 2006. I initially informally informed Anita
Carey EEO Representative of my harassment and hostile working conditions. I then tried to set
up an appointment to file an official complaint in December 2006. She informed me that she had
to take her daughter to the airport and she would call me when she was available. I never
received a phone call back.” Pl.’s Ex. 44. Plaintiff’s Exhibit 48 consists of a single page labeled
“Formal Complaint” and “Page 9 of 37.” The complete “Formal Complaint” does not appear to
be in the record. The document contains the exact same statement excerpted above from Exhibit
44: “I have been trying to file an EEO Complaint since November 2006 . . .” Pl.’s Ex. 48. The
defendant argues, in reference to Exhibit 44 in particular, that “[t]hese are pages from the EEO’s
Counselor’s Report in which Plaintiff recites her bare allegations, nothing more.” Def.’s Reply
Mem. at 14. While the Court recognizes that this evidentiary support is indeed thin, taken in the
light most favorable to the plaintiff, plaintiff’s alleged “initiation of EEO counseling” on
November 16 is sufficient to save her retaliation claim from summary judgment. Bell, 398 F.
Supp. 2d at 94.
The record shows that Coquis decided not to renew the plaintiff’s contract approximately
a week after Brooks allegedly contacted an EEO Counselor, on November 24, 2006, by sending
7
The Plaintiff’s Response to Defendant’s Material Facts Not in Dispute actually asserts that “Ms. Brooks engaged
in prior protected activity because she sought out and complained to an EEO counselor, Anita Carey ‘or about
November 16, 2011’” but the Court assumes that she means November 16, 2006 as stated in her Statement of
Material Facts. Compare Pl. SMF ¶ 1 with Pl.’s SMF Resp. ¶ 22.
24
an email to human resources that stated, in relevant part: “I have come across more information
that has influenced me toward not renewing her contract in April of 2007. I will provide HR an
official letter at that point if termination of the contract does not occur prior.” Def.’s Ex. 15.
The temporal proximity of eight days between the alleged initiation of EEO counseling and the
cryptic non-renewal decision alluding to Coquis coming across “new information” about the
plaintiff is sufficient to establish a prima facie case of retaliation. Hamilton, 2012 WL 119134,
at *11 (“[t]emporal proximity can indeed support an inference of causation, but only where the
two events are very close in time”) (quoting Woodruff, 482 F.3d at 529). The defendant suggests
Coquis’ decision could not be retaliatory because “[t]here is no record support for Plaintiff’s
allegation that Coquis knew of her ‘attempts’ to contact a counselor before November 24, 2006,”
Def. Reply Mem. at 14. Plaintiff contends otherwise, stating that Coquis “was in Ms. Brooks’
office area when Ms. Brooks spoke with EEO Counselor Anita Carey in November 2006.” Pl.’s
Opp. Mem. at 21-22. While the plaintiff’s evidence is weak, it still amounts to a material factual
dispute that cannot be resolved on this record, particularly when deposition discovery has not
been completed. See Hamilton, 2012 WL 119134, at *13 (remanding retaliation claim in
employment discrimination suit despite denial by supervisor of knowledge of protected activity,
finding that agency’s knowledge of protected activity is sufficient at least at prima facie stage).
Since a jury could sustain a finding of retaliation on the current record, summary judgment on
the plaintiff’s retaliation claim is denied at this time.
25
D. Failure To Accommodate Disability Claims
“[T]he Rehabilitation Act prohibits federal agencies from engaging in employment
discrimination against disabled individuals and further requires agencies to make reasonable
accommodations for persons with disabilities unless such accommodations would impose undue
hardship on the agency.” Klute v. Shinseki, No. 10-1126, 2012 WL 35599, at *4 (D.D.C. Jan. 9,
2012) (quoting Nurriddin v. Bolden, 674 F. Supp. 2d 64, 82 (D.D.C. 2009)). “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, No. 08-1710, 2012 WL 52265, at *9 (D.D.C. Jan. 10, 2012) (quoting 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.’” Id.
(quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998) (en banc)).
“To establish a prima facie case of discrimination under the Rehabilitation Act for an
employer’s failure to reasonably accommodate a disability, a plaintiff must show (1) that she was
an individual who had a disability within the meaning of the statute; (2) that the employer had
notice of her disability; (3) that with reasonable accommodation she could perform the essential
functions of the position; and (4) that the employer refused to make the accommodation.” Id.
(internal quotation marks and alterations omitted).
The defendant argues that the plaintiff has presented insufficient evidence to satisfy her
burden of proof that she had a disability within the meaning of the Rehabilitation Act or that the
employer had notice of her disability. This Court agrees.
“An individual is disabled [within the meaning of the Rehabilitation Act] if [she]: (1) has
‘a physical or mental impairment that substantially limits one or more of [her] major life
26
activities,’ (2) has ‘a record of such impairment,’ or (3) has been ‘regarded as having such an
impairment.’” Klute, 2012 WL 35599, at *4 (quoting 42 U.S.C. § 12102(1)); see also 29 U.S.C.
§ 705(20)(B) (incorporating into the Rehabilitation Act the Americans with Disabilities Act’s
definition of disabled individual). 8 To be substantially limiting, “an ‘impairment’s impact must .
. . be permanent or long term.’” Klute, 2012 WL 35599, at *4 (quoting Haynes v. Williams, 392
F.3d 478, 482 (D.C. Cir. 2004) and Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 198
(2002)).
As described above, the plaintiff contends that she suffered from an eye disability and
that she requested reasonable accommodation for her alleged disability on December 15, 2006
and thereafter by requesting that a portion of her duties involving the review of PowerPoint
slides created by other managers be reassigned to another employee. Compl. ¶¶ 37-40; Def.’s
SMF ¶¶ 19-21; Pl.’s SMF Resp. ¶¶ 19-21. The plaintiff’s purported request for accommodation
on December 15, 2006 occurred in response to an email that Spinale sent expressing criticism of
the plaintiff’s review of certain PowerPoint (“PPR”) slides. See Def.’s Ex. 14. Spinale sent an
email to the plaintiff noting mistakes in PowerPoint slides and stating that “these types of
mistakes call all your efforts on the PPR into question and create a sense of unreliability with
regard to the final work product.” Id. The plaintiff responded to Spinale, copying Coquis, by
stating that “Sense [sic] you feel that I create a sense of unreliability in regards to reviewing and
8
The plaintiff does not appear to argue that she qualifies as disabled under either the second or third prong – i.e.,
that she had a “record” of a disabling impairment or that she was “regarded as having such an impairment.”
Significant statutory amendments relevant to the definition of “disability” under the Rehabilitation Act and the
Americans with Disabilities Act went into effect on January 1, 2009. See Lytes v. D.C. Water and Sewer Auth., 572
F.3d 936, 939-42 (D.C. Cir. 2009). These amendments sought to “reject” the Supreme Court’s holdings in Toyota
Motor Mfg., Ky. v. Williams, 534 U.S. 184 (2002), and Sutton v. United Air Lines, 527 U.S. 471 (1999). Lytes, 572
F.3d at 939-42. These amendments, however, are not retroactive and, accordingly, do not apply to the conduct at
issue here, which occurred in 2006 and 2007. Id. at 945.
27
editing your PPR Slides. [sic] I suggest due to that fact that my chain of command is aware of
that fact that I have been having severe eye problems, that in the future you have someone else to
review the PPR Slides. It is unfortunate that you have been insensitive to my medical condition
and I am forced to point this out to you.” Id. The plaintiff later reiterated her request that
another employee review the PowerPoint slides on January 18, 2007, citing her original email
request to Spinale on December 15, 2006. Id. The plaintiff describes “the occasional review of
PowerPoint slides created by other managers” as a “small portion of her duties.” Pl.’s Opp’n at
10. The record establishes that the plaintiff’s duties otherwise generally required regular use of
email and computers. See, e.g., Pl.’s Ex. 38 (“Administrative Officer Daily Report January 22,
2007”). The reassignment of the “occasional review” of PowerPoint slides is the only reasonable
accommodation for her alleged disability that the plaintiff ever claims to have requested.
The plaintiff has presented insufficient evidence for a reasonable jury to conclude that
she had “‘a physical or mental impairment that substantially limits one or more of [her] major
life activities.’” Klute, 2012 WL 35599, at *4 (quoting 42 U.S.C. § 12102(1)). The Supreme
Court and D.C. Circuit have explained that, for a finding of disability, “a major life activity must
be ‘substantially’ limited, meaning that the limitation must be ‘considerable’ or ‘specified to a
large degree.’” Lytes v. District of Columbia Water and Sewer Authority, 527 F. Supp. 2d 52, 60
(D.D.C. 2007) (quoting Sutton v. United Air Lines, 527 U.S. 471, 491 (1999)). The plaintiff
cannot meet this demanding standard for demonstrating disability. See Nurriddin v. Bolden, 674
F. Supp. 2d 64, 83 (D.D.C. 2009) (noting the Act creates a “demanding standard for qualifying
as disabled”) (quoting Toyota, 534 U.S. at 197).
The plaintiff contends that her disability affected her “major life activity” of seeing or
vision. Pl.’s Opp’n at 25. Yet it is dubious that any disability that substantially limited the
28
plaintiff’s sight would only manifest itself by limiting the plaintiff’s ability to review PowerPoint
slides, while enabling the plaintiff to otherwise use computers, email, and review documents as
part of her job. See Loya, 2012 WL 52265, at *9 (noting that a plaintiff must show both that she
has a disability within the meaning of the Rehabilitation Act and that with reasonable
accommodation she could perform the essential functions of her position). The plaintiff has
presented neither evidence nor argument to explain this apparent paradox.
Further, the record is lacking in any medical or other documentation that would
demonstrate a disability that substantially limits the major life activity of seeing. The record
contains three notes from the plaintiff’s eye doctor regarding her eye condition. Two of these
notes are from January 2006, nearly a year before the plaintiff’s purported request for reasonable
accommodation in December 2006. Def.’s Ex. 14 at 10-11. The first note, dated January 20,
2006, stated that the plaintiff’s eyes were dilated and that she would have problems focusing for
six to twelve hours. Pl.’s Ex. 36. It also stated “Pt is being treated for a serious eye problem &
will need to be excused until resolution or able to keep eyes open.” Id. The second note, dated
four days later, January 24, 2006, indicated the plaintiff may return to light duty work. Def. Ex.
14 at 11.
The third doctor’s note in the record is dated September 24, 2007, several months after
the end of the plaintiff’s contract at State, and purports to convey the contents of a prior note
allegedly provided to the plaintiff’s employer in December 2006. Pl.’s Ex. 35. The prior note is
not in the record. The September 24, 2007 note is handwritten and reads, in its entirety: “The
following note was given to Ms. Brooks[’] Employer in Dec 06: To whom it may concern, Pt
Yvonne Brooks is being treated for a chronic severe eye condition (since April 06) that decreases
visual acuity. Please keep this in mind when assigning tasks until resolution or improvement
29
occurs. Regards, Dr. Kamal [signature]” Pl.’s Ex. 35. Even assuming the accuracy of the
information reflected in this note, the Court finds that this note, along with the other two, fails to
establish that the plaintiff had a disability within the meaning of the Rehabilitation Act because,
among other things, it provides no details about the specifics or degree of the limitations the
plaintiff faced. See Klute, 2012 WL 35599, at *4 (noting that the mere existence of impairments
does not constitute disability, but rather the plaintiff must show substantial impairment of a
major life activity). In fact, if anything, the doctor’s note suggests that the plaintiff’s “major life
activity” of seeing was not substantially limited, insofar as the note assumed that the plaintiff
would continue working and being “assign[ed] tasks.” Pl.’s Ex. 35.
Thus, there is insufficient record evidence in this case for a reasonable jury to find the
plaintiff had “an impairment that prevent[ed] or severely restrict[ed] the [plaintiff] from doing
activities that are of central importance to most people’s daily lives.” Marshall v. Potter, 634 F.
Supp. 2d 66, 71 (D.D.C. 2009) (quoting Toyota, 534 U.S. at 198). Accordingly, the Court grants
summary judgment for the defendant on the plaintiff’s Rehabilitation Act claim.
IV. CONCLUSION
For the reasons explained above, the defendant’s motion for summary judgment is
granted in part and denied in part. Summary judgment is granted for the defendant on the
plaintiff’s claims for discrimination (Count II), failure to accommodate disability (Count III), and
hostile work environment (Count IV). Summary judgment is denied on the plaintiff’s claim for
retaliation (Count I). Pursuant to the Scheduling Order, ECF No. 13, deposition discovery may
now commence on the remaining claim in this action. The Court will afford the parties 90 days
from the date of this Memorandum Opinion and the accompanying Order for deposition
30
discovery. The parties are directed to appear for a status conference after completion of
discovery, on May 4, 2012, to set dates for a pretrial conference and trial.
DATED: January 30, 2012 /s/Beryl A. Howell
BERYL A. HOWELL
United States District Judge
31