Carter v. Bridenstine
| Decision Date | 31 March 2020 |
| Docket Number | Civil Action No. 17-1752 (ABJ) |
| Parties | KIM L. CARTER, Plaintiff, v. JAMES F. BRIDENSTINE, Administrator, National Aeronautics and Space Administration, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Kim L. Carter brought this lawsuit under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., against the Administrator of the National Aeronautics and Space Administration ("NASA"), James F. Bridenstine, alleging that NASA unlawfully denied her reasonable accommodations for her disability, discriminated and retaliated against her due to her participation in protected activities and membership in protected classes, and exposed her to a hostile work environment. She also contends that due to the intolerable environment created by those unlawful acts, she was constructively discharged from her job. Compl. [Dkt. # 1].
Pending before the Court is defendant's motion for summary judgment. Def.'s Mot. for Summ. J. [Dkt. # 14] ("Def.'s Mot."). He argues that plaintiff has failed to show she was denied a reasonable accommodation, that she has not come forward with evidence of discrimination or retaliation, and that she has not shown that her working conditions were objectively hostile such that she was constructively discharged. See generally Mem. in Supp. of Def.'s Mot. for Summ. J. [Dkt. # 14] ("Def.'s Mem.").
While plaintiff had the right to expect that she could be supervised without being yelled at, and there is no question that she suffered from serious medical conditions exacerbated by stress, there are no genuine disputes with respect to any material fact at issue, and the defendant is entitled to judgment as a matter of law.
The parties have submitted extensive briefing and a large number of exhibits in this case. To understand the context of the instant matter, it is necessary to review the history of plaintiff's protected activities at NASA. Except where noted, the following facts are not in dispute.
Plaintiff worked for NASA at its headquarters in Washington, D.C. until her retirement on March 3, 2017. Def.'s SOF [Dkt. # 14] ¶ 1; Pl.'s SOF [Dkt. # 18-1] ¶ 1. Plaintiff is an African American woman. Def.'s SOF ¶ 3; Pl.'s SOF ¶ 3. In 2014, she was a Program Specialist in the Office of International and Interagency Relations ("OIIR") and was at a GS-12 pay grade. Def.'s SOF ¶ 4; Pl.'s SOF ¶ 4. From 2009 until 2017, DeVon Fleming1, an African American woman, and Albert Condes served as plaintiff's first and second level supervisors respectively. Def.'s SOF ¶¶ 2, 3; Pl.'s SOF ¶¶ 2, 3.
In January 2015, plaintiff requested that her employer undertake a "desk audit." Def.'s SOF ¶ 6; Pl.'s SOF ¶ 6. A desk audit is conducted by a federal agency to determine if the dutiesand responsibilities in the position description for a certain job within the agency comport with the activities actually being carried out by the employee holding that job. Def.'s SOF ¶ 7; Pl.'s SOF ¶ 7. This leads to a determination of whether the pay grade level assigned to the employee is an accurate reflection of the work she is performing. Id. Plaintiff's desk audit resulted in a determination that she was performing at a GS-9 level and not a GS-12 level. Def.'s SOF ¶ 8; Pl.'s SOF ¶ 8. Plaintiff disputes the results of the desk audit, and she maintains that she was performing work at a level of GS-12 or higher. Pl.'s SOF ¶¶ 8-9.
Following the desk audit, Fleming, as plaintiff's supervisor, was required to choose between downgrading plaintiff to a GS-9 level or assigning her new tasks to meet the GS-12 position description. Def.'s SOF ¶ 9; Pl.'s SOF ¶ 9. Fleming chose to keep plaintiff at the GS-12 level by making sure she was performing assignments that met the GS-12 criteria and by creating a new position description for the job. Def.'s SOF ¶¶ 9-10; Pl.'s SOF ¶¶ 9-10. Plaintiff contends that the new position description did not accurately reflect the work she had been performing. Pl.'s SOF ¶ 10. After receiving the desk audit results, plaintiff filed an appeal with the Office of Personnel Management ("OPM"), which was still open at the time of her retirement. Def.'s SOF ¶¶ 11-12; Pl.'s SOF ¶¶ 11-12.
On October 21, 2015, plaintiff completed an anti-harassment questionnaire and submitted it to NASA, naming Fleming, Condes, and Michael F. O'Brien as alleged harassers.2 Def.'s SOF ¶ 16; Pl.'s SOF ¶ 16; Ex. 9 to Pl.'s Opp. [Dkt. # 18-11] ("Questionnaire"). NASA's anti-harassment policy, which is separate from its Equal Employment Opportunity ("EEO") process, "involves a set of procedures that seeks to investigate and resolve potential harassment in theworkplace before it becomes severe and pervasive." Def.'s SOF ¶¶ 17-18; Pl.'s SOF ¶¶ 17-18. Although plaintiff alleged several instances of discrimination and harassment by her supervisors, a Human Resources Specialist, Tiffany Schuffert, tasked with responding to the questionnaire in conjunction with NASA's Office of General Counsel, found that only two allegations could properly be investigated under NASA's policy. Decl. of Tiffany Schuffert, Ex. 4 to Def.'s Mot. [Dkt. # 14-4] ("Schuffert Decl.") at ¶¶ 1, 13-17. The two instances, alleging "loud yelling" by Fleming, took place in March 2015 and May 2015. Id. ¶ 17.3 Plaintiff maintains that the decision regarding her questionnaire "ignored substantial evidence of endemic bullying and harassment by [p]laintiff's immediate supervisor, Ms. Devon Fleming and her second-level supervisor, Mr. Albert Condes." Pl.'s SOF ¶ 19.
NASA's Anti-Harassment Policy states in sections 1.2.3, 1.2.3.4., and 1.2.3.5. that "[i]n responding to specific allegations of harassing conduct, supervisors and managers shall: . . . [a]ct as . . . Fact Finder to conduct fact-findings into allegations of harassment where fact-finding is necessary . . . [and t]ake appropriate corrective action . . . as necessary after consultation and notification of appropriate officials." Ex. 1 to Schuffert Decl. [Dkt. # 14-4] ("Anti-Harassment Procedures") at 10-11. The procedures also state at Section 1.2.5 that, "[t]he management official shall normally be the next higher level supervisor or manager in the chain of command. . . ." Id. at 11. Based on these policies, and after discussion with the Office of General Counsel, Schuffertdesignated Condes - plaintiff's second-level supervisor and Fleming's immediate supervisor - to investigate the allegations. Schuffert Decl. ¶ 18. Plaintiff claims that it was improper for Condes to investigate "his own conduct in violation of the anti-harassment policy . . . ." Pl.'s SOF ¶ 20.
As part of his investigation, Condes attempted to meet with plaintiff, and she initially refused. Def.'s SOF ¶ 21; Pl.'s SOF ¶ 21. Condes sent an email to plaintiff stating Def.'s SOF ¶ 21; Pl.'s SOF ¶ 21. Over the course of the investigation, Condes ultimately interviewed plaintiff, as well as Fleming and at least one other individual. Schuffert Decl. ¶ 19. Condes concluded there had not been a violation of the Anti-Harassment Policy, and the matter was closed. Id. ¶ 21.4
Plaintiff submitted a request for reasonable accommodation form to NASA on October 23, 2015. Def's SOF ¶ 32; Pl.'s SOF ¶ 32; Ex. 15 to Pl.'s Opp. [Dkt. # 18-17] ("Request 1"). In it, she stated that Request 1 at 1. Plaintiff later confirmed with Fleming that that she wasasking to telework one-to-two days per week, likely Monday and/or Friday as the accommodation. Def.'s SOF ¶ 34; Pl.'s SOF ¶ 34.
In the request, plaintiff stated that her medical conditions included hypertension and complex migraines, among other ailments. Request 1 at 1. The physical manifestations of her condition, however, would arise episodically and not predictably. Def.'s SOF. ¶ 35; Pl.'s SOF ¶ 35. Indeed, in a November 23, 2015 letter, a Department of Health & Human Services ("DOH") doctor, Papiya Ray, wrote that Letter from Doctor Papiya Ray, Ex. 18 to Pl.'s Opp. [Dkt. # 18-20] ("2015 Ray Letter") at 2.
NASA's reasonable accommodation policy treats reassignment as "a last resort" and clarifies that a "reassignment will only be considered if no reasonable accommodations are effective to enable the employee to perform the essential functions of the current job[.]" Ex. 11 to Pl.'s Opp. [Dkt. # 18-13] ( ) §§ 3.4.4g, 3.4.5. Fleming ultimately determined thatthe appropriate accommodation for plaintiff would be to continue episodic telework as needed. Def.'s SOF ¶¶ 36-37; Pl.s SOF ¶¶ 36-37.5
On November 26, 2015, plaintiff emailed Fleming that she had not yet received the mid-point review that was due on November 30th. Def.'s SOF ¶ 22; Pl.'s SOF ¶ 22. Fleming held the review on November 30th, during which she asked plaintiff to certify OIIR travel - a duty that fell within plaintiff's position description. Def.'s SOF ¶¶ 23-25; Pl.'s SOF ¶ 23-25.
On January 5, 2016, Fleming issued plaintiff a...
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