Congress v. Gruenberg
| Decision Date | 01 December 2022 |
| Docket Number | Civil Action 19-01453 (CKK) |
| Parties | ROGER A. CONGRESS, Plaintiff, v. MARTIN J. GRUENBERG, Acting Chairman, Federal Deposit Insurance Corporation Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Roger A. Congress filed suit against Defendant Jelena McWilliams,[1] Chairman of the Federal Deposit Insurance Corporation (FDIC) alleging violations of the Rehabilitation Act. Specifically, Plaintiff brought a Rehabilitation Act failure to accommodate claim, arguing that Defendant denied him the following reasonable accommodations for his disability: a change in assignments; permission to telework the end of pressure to retire, undergo a Performance Improvement Plan, or other pressure that worsened Plaintiff's disability; and reassignment to a different position. See Compl. ¶ 17; Pl.'s Opp'n at 17-20. Plaintiff also brought a Rehabilitation Act discrimination claim based on disability as to being persistently assigned work he was unable to perform. See Compl. ¶ 18; Pl.'s Opp'n at 1 14-17. Finally, Plaintiff brought a Rehabilitation Act retaliation claim, arguing that Defendant retaliated against him for filing a request for reasonable accommodation by placing him on a Performance Improvement Plan, issuing a Notice of Proposed Suspension, and threatening to fire him and withhold his pension. See Compl. ¶ 19. Presently before the Court is Defendant's [48] Motion for Summary Judgment on all claims.
Upon consideration of the pleadings,[2] the relevant legal authorities, and the record as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART Defendant's Motion for Summary Judgment. The Court GRANTS summary judgment for the Defendant on Plaintiff's Rehabilitation Act discrimination and retaliation claims entirely. The Court GRANTS summary judgment for the Defendant on Plaintiff's Rehabilitation Act failure to accommodate claim with respect to Plaintiff's requests of telework; the end of pressure to retire, undergo a Performance Improvement Plan, or endure any other pressure; and reassignment. The Court DENIES summary judgment on Plaintiff's failure to accommodate claim under the Rehabilitation Act with respect to Plaintiff's request for a change in work assignments, as genuine disputes of material fact preclude summary adjudication of that claim.
Plaintiff was an employee of the FDIC before retiring on October 31, 2018. See Def.'s Exs. 28; 29. Prior to his retirement, Plaintiff contacted an FDIC Equal Employment Opportunity (EEO) officer on July 13, 2018 with complaints of alleged discrimination. Def.'s Ex. Updated 36. Plaintiff participated in the FDIC's EEO mediation program, which was not successful in resolving his claims. Def.'s Ex. 38. He then filed a formal complaint of discrimination with the FDIC on October 17, 2018. Def.'s Ex. Updated 37. On November 2, 2018, the FDIC Office of Minority and Women Inclusion (OMWI) accepted the following claims for investigation: (1) whether Plaintiff was denied a reasonable accommodation for his disabilities; (2) whether Plaintiff was discriminated against on the basis of retaliation for requesting a reasonable accommodation when placed on a Performance Improvement Plan; (3) whether Plaintiff was discriminated against on the basis of retaliation for requesting a reasonable accommodation when issued a Notice of Proposed Suspension; and (4) whether Plaintiff was discriminated against on the basis of disability and retaliation when he was “forced to involuntarily retire from employment”. Def.'s Ex. 38. The FDIC OMWI issued a Report of Investigation on April 19, 2019. Compl. at 3.
Plaintiff filed this action with the Court on May 17, 2019. See generally id. Plaintiff brought a Rehabilitation Act failure to accommodate claim, arguing that Defendant denied him the following reasonable accommodations for his disability: a change in assignments; permission to telework; the end of pressure to retire, undergo a Performance Improvement Plan, or other pressure that worsened Plaintiff's disability; and reassignment. See id. ¶ 17; Pl.'s Opp'n at 1720. Plaintiff also brought a Rehabilitation Act discrimination claim based on disability for being persistently assigned work he was not able to perform. See Compl. ¶ 18; Pl.'s Opp'n at 1, 14-17. Finally, Plaintiff brought a Rehabilitation Act retaliation claim, arguing that Defendant retaliated against him for filing a request for reasonable accommodation by placing him on a Performance Improvement Plan, issuing a Notice of Proposed Suspension, and threatening to fire him and withhold his pension. See Compl. ¶ 19.
After engaging in discovery, Defendant FDIC filed a Motion for Summary Judgment on December 30, 2021. The parties have briefed the motion, now ripe for consideration by this Court.
The Court notes that Plaintiff failed to comply with Local Civil Rule 7(h) in its Statement of Genuine Issues. Local Civil Rule 7(h) requires “a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.” LCvR 7(h). The Court emphasized that it “strictly adheres to the dictates of Local Civil Rule 7(h)” in the Order posted on August 26, 2021. ECF No. 45.
Instead of providing a concise statement, Plaintiff offered additional information-at times very lengthy-that was not responsive to Defendant's Statement of Material Facts and did not raise genuine issues necessary to be litigated. Plaintiff also made legal arguments, going so far as to cite case law and federal regulations.
Plaintiff's deviation from Local Civil Rule 7(h) undermines the purpose of the Rule, which is to assist the Court in quickly determining if any facts are actually in dispute. See Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153 (D.C. Cir. 1996) (“[R]epeatedly blending factual assertions with legal argument... does not satisfy the purposes of [Rule 7(h)].”). Here, the Court was left with the task of discerning what material facts were embedded in Plaintiff's paragraphs and, of those, which presented a potential dispute. In its analysis, the Court did not rely on any legal arguments made by Plaintiff in their Statement of Genuine Issues, as the pleading, properly presented, would have included only factual assertions.
This Statement of Facts includes undisputed and unrebutted facts. Mr. Congress began his employment with the FDIC in 1991; he was promoted to the position of Chief, Operations and Technology Systems in the Division of Consumer Protection (DCP), in 2011. Def.'s Statement ¶ 1. In this position, Mr. Congress supervised the employees responsible for performing the work of the DCP Internet Coordinator. Id. In September 2016, Mr. Congress requested a “voluntary downgrade” due to his “health condition.” Id. ¶ 2. He was reassigned to the position of DCP Information Management Analyst, id. ¶ 3, which he began on October 3, 2016, Pl.'s Opp'n at 14. Mr. Congress was on detail to Corporate University from October 3, 2016 through December 1, 2016, during which time he successfully “contributed to three projects.” Pl.'s Ex. 4. In December 2016, Mr. Congress began treatment for “generalized anxiety disorder as well as depression.” Pl.'s Ex. 10; Pl.'s Ex. 14.
Upon return from the Corporate University detail, Mr. Congress was told he would be assigned to “technical work and that he was expected to independently design, develop and enhance web content changes and solutions for both the Intranet and Internet.” Pl.'s Ex. 12 at 3. This role was referred to as DCP “Internet Coordinator.” Def.'s Statement ¶ 6. In this role, Mr. Congress's first line supervisor was Cristal Perpignan and second-line supervisor was Nikita Pearson. Id. ¶ 7. Mr. Congress was “given 4 months without any Internet/Intranet assignments to just learn CQ,” including attending Adobe CQ training, reviewing CQ aides, and having one-on-one and desk-side training. Def.'s Ex. 33. This training was extended after Mr. Congress expressed that “he was not adequately prepared for independent work.” Def.'s Ex. 11.
In March 2017, Ms. Perpignan approved a flexible work schedule for Mr. Congress after receiving a report from Mr. Congress's doctor regarding his depression and anxiety. Def.'s Statement ¶ 8; Pl.'s Statement ¶ 8. In May 2017, Mr. Congress was assigned a project to redesign pages on the FDIC intranet. Def.'s Ex. 11. As of November 2017, Mr. Congress had “made no progress on [his] 1 and only assignment;” he “had not provided [Ms. Perpignan] any deliverables showing progress on this work.” Def.'s Ex. 33. As a result, Mr. Congress received an overall job standards rating of “Improvement Required” for the performance rating period ending August 31, 2017. Def.'s Ex. 11. The narrative attached to the performance rating stated that “[d]uring the evaluation period, Mr. Congress failed to demonstrate the technical skills for his job and he failed to complete the work he was assigned, repeatedly failing to meet deadlines.” Id.
Mr Congress failed to meet all revised deadlines and produced no work product between November 2017 and January 2018. Def.'s Ex. 10. Ms. Perpignan therefore issued a Letter of Warning (LOW) to Mr. Congress on January 19, 2018 detailing his performance deficiencies. Id. The LOW “warned [Mr. Congress] that failure to improve the performance outlined above within the next 45 days, failure to carry out the duties and responsibilities of your position in a fully satisfactory manner, or a further decline in your level of performance, could result...
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