Cox v. Nielsen
| Decision Date | 26 March 2019 |
| Docket Number | Case No. 1:16-cv-01966 (TNM) |
| Parties | NICOLE COX, Plaintiff, v. KRISTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, Defendant. |
| Court | U.S. District Court — District of Columbia |
Nicole Cox was hired as a Secret Service police officer, but the Service did not retain her beyond her three-year probationary period. She alleges that the Secret Service's decision was based on her disability, in violation of the Rehabilitation Act of 1973, and gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. She also alleges that the Service failed to accommodate her disability in violation of the Rehabilitation Act.1 The Secretary of Homeland Security, who oversees the Secret Service, moved for summary judgment, and the Magistrate Judge's Report and Recommendation ("Report") recommends granting her motion. The Court will accept the Report over Ms. Cox's objections and grant summary judgment to the Secretary.2
Before the Court are Ms. Cox's objections to the Report. Supp. Obj., ECF No. 32.3 When a party objects to a magistrate judge's Report, the Court reviews de novo any part of themagistrate judge's disposition to which a party properly objects. Fed. R. Civ. P. 72(b)(3). The district court may then "accept, reject, or modify the recommended disposition." Id.
Upon consideration of the Report, Ms. Cox's objections, the Secretary's response, the briefing on the motion for summary judgment, and the entire record, the Court will adopt the findings and conclusions of the Report in full. Having reviewed this case de novo, the Court agrees with the entirety of the Report and will adopt and incorporate its analysis and conclusions as its own. The Court provides supplemental analysis here in response to Ms. Cox's objections.
Summary judgment is appropriate when "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." Fed. R. Civ. P. 56(a). Moreover, "[i]f the [non-movant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). Once the moving party meets its burden, the non-moving party must designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Ms. Cox does not object to the Report's finding that the Secret Service had legitimate, nondiscriminatory reasons for not converting her to career status.4 So even if Ms. Cox could establish a prima facie case of discrimination, under the burden-shifting framework applicable to discrimination claims, she must show that the Service's proffered reason is a pretext for discrimination. See, e.g., Hatter v. Wash. Metro. Area Transit Auth., 244 F. Supp. 3d 132, 136 (D.D.C. 2017). That is, Ms. Cox must show that her gender or disability was the actual reasonfor her non-conversion. See Brady v. Office of Serg. at Arms, 520 F.3d 490, 493-95 (D.C. Cir. 2008) (Title VII); Butler v. Wash. Metro. Area Transit Auth., 275 F. Supp. 3d 70, 81 (D.D.C. 2017) (Rehabilitation Act). But she does not dispute the Report's findings regarding job performance issues that supported the Secret Service's decision, see R&R at 25. She has not shown that her disability or gender, rather than her performance issues, motivated the Secret Service's decision.5
Ms. Cox's discrimination and failure-to-accommodate claims under the Rehabilitation Act both fail. To establish a discrimination claim under the Rehabilitation Act, Ms. Cox must show that she was a "qualified individual with a disability." See Badwal v. Bd. of Trustees of the Univ. of D.C., 139 F. Supp. 3d 295, 308 (D.D.C. 2015). So too for failure-to-accommodate claims. See id. at 312. But Ms. Cox is not a "qualified individual," because she could not perform the essential functions of her job when the Secret Service decided not to convert her to career status.6 See Dr. Miller Assessment at 1, ECF No. 26-19 ().
Ms. Cox objects that the Report relies on the wrong adverse employment action date to assess whether she was qualified at the time of her non-conversion. Not so. The Report evaluated whether Ms. Cox was a qualified individual as of October 12, 2011, the date she received notice that she would not be converted to a career employee. See R&R at 17-20. And a "notice of termination itself constitutes an adverse employment action, even when theemployer later rescinds the termination." See Shultz v. Congreg'n Shearith Israel of N.Y.C., 867 F.3d 298, 305-06 (2d Cir. 2017) ().
In any event, using Ms. Cox's proposed date—November 12, 2011—gets her out of the frying pan but into the fire. First, Ms. Cox appears to misplace the burden. See Sub. Obj. at 3-8 (). The plaintiff must show a genuine dispute whether she was a qualified individual at the time of the adverse employment action. See Butler, 275 F. Supp. 3d at 75. But she has pointed to no evidence from around November 2011 suggesting that she could perform the essential functions of her job. And her failure to direct the Court to this evidence dooms her claim, because she has the burden to establish a prima facie case under the Rehabilitation Act. See Brown v. PSI Servs., Inc., 736 F. Supp. 2d 234, 236 (D.D.C. 2010) ().
Indeed, the evidence suggests that before, on, and after November 12, 2011, Ms. Cox could not perform the essential functions of her job. In the months before November 2011, two doctors determined that Ms. Cox was unable to wear a gun belt. See Dr. Pfeifer Assessment at 2, ECF No. 26-18; Dr. Small Assessment at 2, ECF No. 26-17. Based on those opinions and other medical evidence, Dr. Miller found that Ms. Cox was not qualified to perform the essential functions of her job as of October 12, 2011. See Dr. Miller Assessment at 1-2.7
While Dr. Pfeifer and Dr. Small "anticipated" that Ms. Cox would recover, speculative predictions about how Ms. Cox would progress do not create a genuine issue of fact whethermonths later Ms. Cox had, in fact, recovered. Cf., Mazza v. Bratton, 108 F. Supp. 2d 167, 175 (E.D.N.Y. 2000) (). Ms. Cox can point to no medical evidence from around November 2011 that shows she had in fact recovered.
More, in October 2011, Ms. Cox suffered a seizure, after which, by her own admission, she could not drive or carry a gun for six months, Cox Dep. at 12 ().8 See Ex. V, 22-3. The doctors' predictions that Ms. Cox would fully recover were made before this incident and so did not account for it. Indeed, Dr. Small based her August 2011 prediction that Ms. Cox would fully recover within six months on the assumption that Ms. Cox "does not have additional medial impairments." Dr. Small Assessment at 2.9 And well in to 2012, Ms. Cox sought treatment for pain. See Dr. Marvel Assessments (March and December 2012), Ex. 3, ECF No. 22-2. All of this suggests that in November 2011 Ms. Cox was not a "qualified individual," and she has pointed to no evidence that would create a genuine dispute of fact that she was.
Ms. Cox's failure to accommodate claim also fails because she has not showed that she requested an accommodation. To carry her burden, Ms. Cox "must supply enough information that, under the circumstances, the employer can be fairly said to know of both the disability andthe desire for accommodation." Thompson v. Rice, 422 F. Supp. 2d 158, 176 (D.D.C. 2006) (cleaned up). But she has not done so.
Ms. Cox argues that she pointed to several doctors' notes that stated that while she could not perform the essential functions of her job, recovery was expected in the future. See Supp. Obj. at 9-10. She argues that these notes were evidence that she requested an accommodation. Id. But it is unlikely that the Secret Service could have known from these notes that Ms. Cox desired an accommodation. See Thompson, 433 F. Supp. 2d at 176-77 ().
Moreover, even if the Court were to interpret the doctors' notes as requests for accommodation, the Service did accommodate Ms. Cox by allowing her to remain on light duty until her term of employment expired. The Secretary maintains that Ms. Cox remained on light duty after her 2010 surgery until her probationary period expired in November 2011. See Statement of Material Fact ¶¶ 4, 12, 14, ECF No. 22-1. She has pointed to no evidence showing otherwise. Based on Ms. Cox's performance issues the Secret Service decided not to convert her to career status, and once Ms. Cox's probationary term expired, the Service did not have to accommodate a non-employee.
Ms. Cox also points to Dr. Miller's note to argue that the Secret Service should have offered to reassign her as an accommodation. Supp. Obj. at 16. Her argument on this point is far from pellucid....
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