Davis v. Vilsack

• Docket Number: Civil Action 17-245 (TJK)
• Decision Date: 18 September 2023
• Parties: ROSETTA DAVIS, Plaintiff, v. TOM VILSACK, Defendant.
• Court: U.S. District Court — District of Columbia

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ROSETTA DAVIS, Plaintiff,
v.
TOM VILSACK, Defendant.

Civil Action No. 17-245 (TJK)

United States District Court, District of Columbia

September 18, 2023

MEMORANDUM OPINION

TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

Rosetta Davis, a former Department of Agriculture employee, brings several claims under Title VII and the Rehabilitation Act. According to Davis, the Department engaged in a campaign of harassment and retaliation against her for protected activity and because of her disabilities. The Department moves for summary judgment. For the reasons explained below, the Court will grant the motion as to all counts except for Count III, which pleads a failure-to-accommodate claim under the Rehabilitation Act. The Court will dismiss that claim for lack of subject-matter jurisdiction because Davis failed to exhaust her administrative remedies.

I. Factual and Administrative Background

Davis's claims stem from a series of workplace tribulations during her time at the Department, which she alleges violated her rights under Title VII and the Rehabilitation Act. Her problems with the agency span nearly a decade. See ECF No. 43-2 ¶¶ 76-90; ECF No. 49-3 ¶¶ 76-90. In the operative complaint, Davis describes a concerted campaign against her, alleging patterns of discrimination, retaliation, and harassment dating back to 2002. Third Am. Compl. ¶¶ 20-24, ECF No. 27 (“TAC”). Management's motives, she says, were manifold-she reported unethical behavior in the early 2000s, id.; she had a sexual relationship with a supervisor, the nature of which

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the parties contest, id. ¶¶ 25-36; compare ECF No. 43-2 ¶¶ 12-13 with ECF No. 49-3 ¶¶ 12-13; and she filed an EEO complaint against a former supervisor for disability discrimination, TAC ¶¶ 37-47. From there, she claims she was shuffled around the department involuntarily until she landed in the Farm Service Agency's Office of Civil Rights (“FSA-OCR”) in January 2014-all in retaliation for earlier protected activity. She further alleges that, around the time she started in FSA-OCR, she assisted in a whistleblower investigation related to the Department's treatment of EEO complaints. TAC ¶ 68.

Although these allegations comprise the lion's share of Davis's complaint, the story she tells bears little resemblance to the parties' positions at summary judgment. That may be because many of her allegations predate a 2011 settlement agreement resolving Davis's 2011 EEO complaint, in which she agreed to “waive any and all claims for . . . pecuniary, . . . nonpecuniary and/or compensatory damages based on allegations raised in any claim or alleged claim of employment discrimination against [the Department] arising prior to the effective date of [the] Agreement.” ECF No. 43-32 ¶¶ B(2)-(3); ECF No. 43-2 ¶ 91; see also ECF No. 49-3 ¶ 91. In any event, the allegations supporting the claims Davis defends at summary judgment begin in January 2014, when during a “major reorganization that affected all of the employees in [the Office of the Assistant Secretary for Civil Rights],” the Department reassigned Davis to the Farm Service Agency's (“FSA's”) Office of Civil Rights (“FSA-OCR”). ECF No. 43-2 ¶¶ 19, 96 (internal quotes omitted); ECF No. 49-3 ¶¶ 19, 96.

A. Davis's Time at the Farm Service Agency's Office of Civil Rights

Davis's January 2014 reassignment to FSA-OCR was anything but smooth. At first, she was dissatisfied with all the red tape surrounding her keycard access, transit benefits, and the transfer of her personal belongings. See ECF No. 43-4 38:4-10; ECF No. 43-38 15:3-4; ECF No. 4352 at 12; ECF No. 43-2 ¶¶ 101-02; ECF No. 49-3 ¶¶ 101-02. Then came disputes with her

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supervisor, Darlene Thompson. See ECF No. 43-2 ¶¶ 19, 21-27, 32; ECF No. 49-3 ¶¶ 19, 21-27, 32. Both Davis and Thompson characterized the beginning of their relationship as positive. ECF No. 43-15 (audio tape); see also TAC ¶ 79. But the relationship took a turn. See ECF No. 43-15 (audio tape); see also TAC ¶ 79.

Davis and Thompson's souring relationship came to a head in October 2016, when Davis was due for a performance appraisal. TAC ¶ 82. Before the meeting, Thompson requested that Davis submit written performance accomplishments before the meeting. ECF No. 43-2 ¶ 23; ECF No. 49-3 ¶ 23. Davis declined to do so. ECF No. 43-2 ¶ 24; ECF No. 49-3 ¶ 24. Even without the written accomplishments, Thompson rated Davis's work as “fully successful”-but not “superior.” ECF No. 43-2 ¶ 25; ECF No. 49-3 ¶ 25. She explained her decision by pointing to poor work performance, tardy and missed assignments, a combative attitude, and other workplace issues. ECF No. 43-15 (audio tape); ECF No. 43-2 ¶ 26; ECF No. 49-3 ¶ 26. Thompson explained that she believed Davis was entitled only to a “marginal” rating but that, in “good faith” and in recognition of Davis's “potential,” she decided to award Davis a rating of “fully successful” instead. ECF No. 43-13 at 8-9.

During the performance review meeting, Davis lashed out at Thompson in response to her criticism. ECF No. 43-15 (audio tape); ECF No. 43-2 ¶ 32; ECF No. 49-3 ¶ 32. She called Thompson “nasty,” “hostile,” “dishonest,” and “quite a disappointment.” ECF No. 43-15 (audio tape); ECF No. 43-2 ¶ 32; ECF No. 49-3 ¶ 32. She also brought up issues in Thompson's personal life. ECF No. 43-15 (audio tape). Toward the end, Thompson asked Davis to remain for another meeting. ECF No. 51-1 ¶ 63. The parties dispute whether Thompson blocked the exit, but Davis left the room rather than stay for the meeting. Id. ¶¶ 64-65.

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After her performance review, Davis “did not want to have to go back into that work environment.” ECF No. 43-2 ¶ 38; ECF No. 49-3 ¶ 38. And indeed, eight days after the dispute, the Department placed Davis on paid administrative leave. ECF No. 43-2 ¶ 37; ECF No. 49-3 ¶ 37. The Department then began searching for a new position for Davis. See ECF No. 43-2 ¶ 42; ECF No. 49-3 ¶ 42. A few months later, in February 2017, the Department reassigned Davis to FSA's Emergency Preparations Division (“FSA-EPD”). See ECF No. 43-2 ¶ 42; ECF No. 49-3 ¶ 42. In connection with this transfer, Davis's title shifted from “Management Program Analyst 343” to “Program Specialist 301 series,” which, according to Davis, changed not just her “title, duties, [and] responsibilities” but also “demoted” her and gave her “a black eye for the upper mobility of [her] career growth” by reducing her promotion potential. ECF No. 43-52 at 5-8.

Meanwhile, on November 4, 2016, during her paid administrative leave, Davis contacted an EEO counselor. ECF No. 43-2 ¶ 79; ECF No. 49-3 ¶ 79. She then filed an EEO complaint on January 9, 2017 based on her performance review meeting with Thompson. ECF No. 43-2 ¶ 80; ECF No. 49-3 ¶ 80. Days later, she supplemented her complaint to allege that her placement on administrative leave constituted retaliation and gender discrimination. ECF No. 43-2 ¶ 81; ECF No. 49-3 ¶ 81. Then in March 2017, she again supplemented her complaint to allege that her reassignment to FSA-EPD was retaliatory and that her employer failed to grant her reasonable accommodation request for “an ergonomic keyboard and an ergonomic chair.” ECF No. 43-2 ¶¶ 82-83; ECF No. 49-3 ¶¶ 82-83.

B. Davis's Time at the Farm Service Agency's Emergency Preparations Division

Davis's time at FSA-EPD, starting in February 2017, was also riddled with disputes. The first disagreements involved office space, computers, and ergonomic equipment. To start, FSA-EPD assigned Davis an office in an above-ground basement. ECF No. 51-1 ¶¶ 81-83; ECF No. 43-23 42:10-18. After Davis stated she could not work in that space because of her disability,

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FSA-EPD assigned her to an office in its other workspace in the Patriot Plaza III building. ECF No. 51-1 ¶ 87; ECF No. 43-23 45:3-5. That building and the “basement” level were the only two spaces where EPD had office space. ECF No. 43-11 29:18-30:8, 48:18-21.^[1] But Davis refused to work in Patriot Plaza III because Thompson worked in the same tower. ECF No. 51-1 ¶ 89. The Department ultimately granted Davis's request for a different office after she provided documentation that the request stemmed from her mental illnesses. ECF No. 43-2 ¶ 45; ECF No. 49-3 ¶ 45 (disputing only the date this occurred). Davis's request for a new office was memorialized in a 2017 formal request for reasonable accommodations. See ECF No. 43-24.

Davis's other two disputes upon her arrival at FSA-EPD involved equipment. First, Davis was dissatisfied with her older laptop computer; she preferred a newer model or a desktop version. ECF No. 49-6 199:6-8; ECF No. 49-1 at 23 (“Ms. Davis worked on a lap top [sic] for her entire tenure at FSA-EPD.”). The other dispute related to ergonomic equipment, which Davis requested along with the different office in her 2017 accommodation request. See ECF No. 43-24. In October 2017, the Department denied this request because Davis had requested the specific equipment that she had used while working for another division, and that “equipment [was] no longer available.” Id.

Beginning in November 2017, Davis and her employer became embroiled in another dispute-this time over telework and her placement on absent without leave (“AWOL”) or leave without pay (“LWOP”) status for supposed unapproved teleworking. See ECF No. 43-23 20:510, 23:18-19; 32:1-6, 40:15-20; ECF No. 43-49 at 6, 10, 13-14; ECF No. 43-1114:11-13, 16:2017:15. The parties do not disagree that Davis sometimes teleworked with permission on an ad hoc,

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case-by-case basis. ECF No. 51-1 ¶ 99. The dispute was over whether the Department ever placed Davis on LWOP when she teleworked with permission. See ECF No. 43-2 ¶ 59; ECF No. 49-3 ¶ 59. In any event, the parties agree that in February 2018, Davis was placed on LWOP for unapproved telework twice when she was in fact in the building-but also that the Department corrected this mistake. ECF No. 43-2 ¶...