Bonnette v. Shinseki

• Decision Date: 30 November 2012
• Docket Number: Civil Action No. 10–2110 (ABJ).
• Citation: 907 F.Supp.2d 54
• Parties: Cathryn BONNETTE, Plaintiff, v. Eric K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of Columbia

907 F.Supp.2d 54

Cathryn BONNETTE, Plaintiff,

v.Eric K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant.

Civil Action No. 10–2110 (ABJ).

United States District Court, District of Columbia.

Nov. 30, 2012.

Morris Eli Fischer, Daniel E. Kenney, Ethan Sapperstein, Law Office of Morris E. Fischer, LLC, Silver Spring, MD, for Plaintiff.

Lexander Daniel Shoaibi, U.S. Attorney's Office, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff Cathryn Bonnette brings this action against defendant Eric K. Shinseki, Secretary of the U.S. Department of Veterans Affairs (“VA”), alleging that she was discriminated against on the basis of her disability (Count I) and retaliated against after she filed EEO complaints against her employer (Count II). Bonnette, who is blind, also charges in Count I that the agency failed to reasonably accommodate her disability.

The complaint purports to bring both counts under the Americans with Disability Act of 1990, 42 U.S.C. § 12101, et seq. (2006) (“ADA”). See Compl. [Dkt. # 1] ¶¶ 110–13 (First cause of action: disability discrimination and failure to accommodate); id. ¶ 119 (Second cause of action: “Defendant's actions constituted a violation of retaliation under the ADA.”). But the “ADA does not apply to employees of the federal government because the federal government is not considered an ‘employer’ under the ADA.” Klute v. Shinseki, 797 F.Supp.2d 12, 17 (D.D.C.2011); see also42 U.S.C. § 12111(5)(B)(i) (specifically excluding “the United States” from the definition of “employer”). To protect federal workers, Congress incorporated the ADA's anti-discrimination and anti-retaliation provisions into the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. (2006) (“Rehabilitation Act”). See Woodruff v. Peters, 482 F.3d 521, 526 (D.C.Cir.2007); see also29 U.S.C. § 791(g); 42 U.S.C. § 12112(a); Marshall v. Potter, 634 F.Supp.2d 66, 73 (D.D.C.2009), citing 29 U.S.C. § 794(d). Because the Rehabilitation Act incorporates the ADA, it is “the exclusive remedy for employment discrimination based on a disability for federal employees.” Raines v. DOJ, 424 F.Supp.2d 60, 64 (D.D.C.2006) (internal citations and quotation marks omitted). Therefore, as both parties have done in their briefing, the Court will assess Bonnette's claims that she was discriminated and retaliated against on the basis of her disability as if they had been brought under the Rehabilitation Act. See, e.g., Def.'s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 20] (“Def.'s Mem.”) at 5–8; Pl.'s Mem. in Opp. to Def.'s Mot. for Summ. J. [Dkt. # 24] (“Pl.'s Opp.”) at 7–9.¹

In her complaint, Bonnette recites a series of factual allegations that range from petty slights—the disparagement of Bonnette's Christmas tree—to significant adverse events, including her termination from the agency, and she premises both causes of action on those facts. The VA seeks judgment on the pleadings, or, in the alternative, summary judgment on all counts. Def.'s Mot. for J. on the Pldgs or, in the alternative, for Summ. J. [Dkt. # 20] (“Def.'s Mot.”). The VA contends that many of the actions that Bonnette characterizes as discriminatory and/or retaliatory do not constitute actionable adverse employment actions within the meaning of the Rehabilitation Act, and that any adverse employment actions that were taken can be explained by legitimate, nondiscriminatory,and non-retaliatory reasons. Def.'s Mem. at 21–41. It further argues that the agency provided Bonnette with the reasonable accommodations that she required, id. at 14–21, and that the circumstances presented in the complaint do not rise to the level of severity necessary to make out a hostile work environment claim, id. at 41–43.² While the Court does not wish to minimize the substantial obstacles that Bonnette was required to overcome in her efforts to meet the demands of her job without the benefit of sight, it concludes that the undisputed facts support the VA's contentions, and it will grant motion for summary judgment on all counts.

BACKGROUND

The complaint sets out the fact that plaintiff Cathryn Bonnette is “totally blind” and thus disabled. Compl. ¶ 22. In March 2007, the VA hired her under Schedule A, a special hiring authority for individuals with targeted disabilities, subject to a two-year probationary period. EEO Affidavit of Ralph Torres (July 7, 2009), Ex. 4 to Def.'s Mot. (“Torres EEO Aff.”) at 348. After the two-year probationary period, the VA could decide to retain Bonnette or terminate her employment with the agency. SF–50 Excepted Appointment, Ex. 7 to Def.'s Mot.; Tracey Therit Deposition (Oct. 26, 2011), Ex. 6 to Def.'s Mot. (“Therit Dep.”) at 13:16–14:1, 16:4–12. Bonnette was terminated at the conclusion of the two years, Nonconversion of Schedule A Appointment, Ex. 16 to Def.'s Mot. (“Nonconversion Notice”), but she was reinstated shortly thereafter for another period that also eventually concluded with her termination, Bonnette Deposition (Aug. 11, 2011), Ex. 1 to Def.'s Mot. (“Bonnette Dep.”) at 76:14–19, 176:4–6. Bonnette ascribes these actions to discrimination and retaliation, and she alleges that the agency did not make the reasonable efforts necessary to accommodate her disability and enable her to succeed. While the complaint does not always include the dates that could serve as helpful signposts, it appears that the general chronology of events is as follows:

I. Two Year Probationary Period: March 2007 to February 2009

During her tenure with the agency, Bonnette served as an ADR program specialist in the VA's Office of Resolution Management (“ORM”). SF–50 Excepted Appointment, Ex. 7 to Def.'s Mot. ORM does not mediate disputes itself, but it arranges for mediations to take place by performing such tasks as scheduling. Therit EEO Affidavit (June 30, 2009), Ex. 3 to Def.'s Mot. (“Therit EEO Aff.”) at 297–98; Def.'s St. of Material Facts as to Which there is no Genuine Dispute [Dkt. # 20–1] (“Def.'s St. Facts”) ¶ 5.³ Bonnette was responsible for working with other ADR groups, producing materials that promoted the use of ADR services, managing the drafting of a VA-wide handbook for certification of ADR neutrals, and coordinating teleconferences for VA certified mediators. Position Descriptions, Exs. 9–10 to Def.'s Mot.; Bonnette Dep. at 58:8–59:1, 64:6–8. Specifically, she was responsible for arranging and identifying topics and speakers for monthly teleconferences for the mediators. Therit Dep. at 151:14–19.

Rafael Torres, the Deputy Assistant Secretary for Resolution, who served as Bonnette's immediate supervisor from March 2007 to May 2008, rated Bonnette's performance as “fully successful” during that period. Bonnette Performance Appraisals, Ex. 23 to Def.'s Mot. at 408–13. Based on that rating, Bonnette was promoted from GS–11 to GS–12 in March 2008, and she continued to serve as an ADR program specialist. Bonnette Dep. at 52:16–17. In May 2008, Tracey Therit, the ADR Director, became Bonnette's immediate supervisor. Id. at 93:8–10; Therit Dep. at 10:14–16. The record indicates that this did not turn out to be a successful pairing for Bonnette.

Initially, Bonnette requested reassignment to a different supervisor and asked to become an EEO counselor. Bonnette Dep. at 119:16–21; Def. St. Facts ¶ 41. The VA has stated that it denied this request because Bonnette was not qualified for the EEO counselor position. Def.'s St. Facts ¶¶ 42–45. Based in part on input from Torres, Therit rated Bonnette as “fully successful” again in September 2008. Bonnette Performance Appraisals, Ex. 23 to Def.'s Mot. at 414–22. But during this evaluation, Therit also informed Bonnette of areas in which her performance needed improvement. Therit EEO Aff. at 316.

On December 10 and 11, 2008, Therit contacted Human Resources about whether the VA should retain Bonnette after her probationary period. Ex. 27 to Def.'s Mot. A few days later, in a December 16, 2008 email, Therit informed Bonnette of specific deficiencies in her performance and stated that Bonnette might not be retained after the probationary period. Ex. 28 to Def.'s Mot. In the email, Therit also asked Bonnette to complete a series of tasks by the end of the month. Id. According to the VA, Bonnette failed to accomplish a number of them, including coordinating central office ADR awareness training, coordinating mediator teleconferences on a quarterly basis, updating the agency's website, and revising a document on tips for preparing settlement agreements. Therit EEO Aff. at 317.

Bonnette admits that she failed to update the ADR website in December 2008, failed to draft a document containing tips for settlement agreements, missed other deadlines, and made typographical errors. See Bonnette Dep. at 142:20–23, 144:19–145:21. However, she asserts that Therit prevented her from accomplishing these tasks by refusing to provide the necessary approvals. Id. at 140:25–141:11.

In January 2009, Bonnette contacted an EEO counselor, and she ultimately alleged sixteen acts of discrimination based on her disability and age. Bonnette 2009 EEO Claims, Ex. 21 to Def.'s Mot. She did not allege retaliation at that time. Id., Def.'s St. Facts ¶ 81. In February 2009, the VA decided to not retain Bonnette after her two-year probationary period. See generally Nonconversion Notice. It placed her on paid administrative leave for two weeks until her February 27, 2009 termination date. Pl.'s Opp. at 2. In addition to a number of alleged general performance deficiencies, the VA identified the following reasons for Bonnette's termination in the Nonconversion Notice:

A. Disclosure of Confidential Information

In February 2008, while scheduling a mediation, Bonnette failed to edit two attachments and disclosed the case number and names of other VA employees who previously participated in the mediation. Nonconversion Notice at 2. Therit advised Bonnette of her error, reported the privacy violation to the ORM...