Duffy v. Dodaro, Civil Action No. 16-1178 (RDM)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRANDOLPH D. MOSS United States District Judge
PartiesDEIRDRE DUFFY, Plaintiff, v. EUGENE LOUIS DODARO, Comptroller General of the United States, Defendant.
Docket NumberCivil Action No. 16-1178 (RDM)
Decision Date21 March 2020

DEIRDRE DUFFY, Plaintiff,
v.
EUGENE LOUIS DODARO, Comptroller General of the United States,1 Defendant.

Civil Action No. 16-1178 (RDM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 21, 2020


MEMORANDUM OPINION AND ORDER

Deirdre Duffy is a disabled veteran who was employed as a Band IIA Communications Analyst at the Government Accountability Office ("GAO") from July 2013 until December 2016. Dkt. 31 at 2-3. Proceeding pro se, Duffy asserts fifteen claims against her former employer, including claims under several federal employment discrimination statutes, the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, the due process clause of the Fifth Amendment, and a claim for breach of contract. Dkt. 31 at 87-102. The GAO, in turn, moves to dismiss all of her claims or, in the alternative, for summary judgment with respect to her Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., claim for failure to accommodate. Dkt. 33 at 1; Dkt. 33-1 at 13.

For the reasons explained below, the Court will GRANT in part and will DENY in part the GAO's motion.

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I. BACKGROUND

A. Factual Background

The following facts are taken from Duffy's second amended complaint, Dkt. 31, which the Court must accept as true for purposes of the GAO's motion to dismiss, see Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014). Duffy suffers from chronic Post Traumatic Stress Disorder ("PTSD") related to her military service. Dkt. 31 at 3 (Second Am. Compl. ¶¶ 1-2). Her PTSD symptoms include "hyperarousal," which causes her nervous system to "operate on full alert" and "impair[s] her ability to sleep, learn, and remember." Id. at 3-4 (Second Am. Compl. ¶¶ 3-4). Unless properly managed, this can cause her physical harm, such as "damage [to her] endocrine system, reduce[d] immunity, [and] . . . autoimmune issues." Id. at 4 (Second Am. Compl. ¶ 4). To minimize the physical and psychological effects of her PTSD, Duffy "must meticulously manage all facets of her immediate environment . . . as well as her diet, exercise, social activities, sleep hygiene, and thought processes." Id. at 5 (Second Am. Compl. ¶ 6).

Duffy applied for a position as a Band I Communications Analyst at the GAO in September 2009. Dkt. 31 at 35 (Second Am. Compl. ¶ 71). In order to receive a veteran's preference in the GAO's consideration of her application, Duffy submitted her discharge paperwork from U.S. military, which states that she has a "Disability - Permanent." Id. She was notified that she was among the "most qualified" for the position and that "an interview would be scheduled." Id. (Second Am. Compl. ¶ 72). "No interview was scheduled," and Duffy "never received any written notice of a hiring decision" with respect to that position. Id.

In February 2013, Duffy once again applied for position at the GAO, this time for a job as a Band II Communications Analyst. Id. (Second Am. Compl. ¶ 74). As with her first

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application, Duffy submitted her military discharge paperwork to the GAO, which again reflected her permanent disability. Id.; see also Dkt. 38-1 at 2-4, 57-60. Duffy was invited to interview for a position working with the GAO's Strategic Issues ("SI") mission team, and, during the interview process, she was told that the position "would be located in . . . the San Francisco, Boston, or Atlanta field offices based upon [the] selectee['s] preference." Dkt. 31 at 35 (Second. Am. Compl. ¶ 75). She "was also invited to interview for a Band II Communications Analyst position within [the] GAO's Strategic Planning and External Liaison ('SPEL') office" and was told "by the Hiring Manager for this position that it was located [at the] GAO['s] Headquarters in Washington[,] D.C." Id. at 36 (Second Am. Compl. ¶ 76).

In May 2013, the GAO offered Duffy a position working with either the SI mission team or the SPEL office. Id. at 37 (Second Am. Compl. ¶ 79). After she called to accept the position with the SI mission team and elected to work in San Francisco in order to be closer to her home in Seattle, the GAO informed Duffy that, despite what she had had previously been told, the SI position was available only in Washington, D.C. Id. (Second Am. Compl. ¶¶ 81-82). Duffy then asked if the SPEL position was still available and was told that the position had been filled. Id. (Second Am. Compl. ¶ 83). As a result, Duffy accepted the position with the SI mission team in Washington, D.C. Id. (Second Am. Compl. ¶ 84). She began work at the GAO as a Band IIA Communications Analyst on July 1, 2013. Id. at 38 (Second Am. Comp. ¶¶ 85-86).

In September 2013, several months after starting work, Duffy "met with a member of the" GAO's human resources office "to discuss concerns that she had [about] sirens that went off continuously outside the office" and "the intensity of the work culture in the [D.C.] GAO office" and how these "conditions" might negatively affect "her PTSD." Id. at 44 (Second Am. Compl. ¶ 115). The human resources office referred her to a website and to other information regarding

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reasonable accommodations and, about a month later, Duffy requested "episodic telework arrangements so she could travel back and forth to her home" in the Seattle area in order "to manage her PTSD symptoms and obtain respite from the urban stressors." Id. (Second Am. Compl. ¶ 117). Duffy made this request to her supervisor, Brian James, and it was approved by the SI mission team's Managing Director, Chris Mihm. Id. at 35, 44 (Second Am. Compl. ¶¶ 75,118).

This "episodic telework arrangement[]" continued until at least October 2014, and, during that time, Duffy "made key contributions" to the SI mission team's work, including training other staff members, id. at 44, 47 (Second Am. Compl. ¶¶ 117, 128-29), helping the "Assistant Director during a staffing shortfall," id. at 47 (Second Am. Compl. ¶ 129), and aiding in the production of at least three different GAO reports that received "significant media attention," id. In recognition of her work, Duffy received time off awards, praise from her team and supervisors, as well as additional work due to increased demand for her skills. Id. (Second Am. Compl. ¶¶ 129-30).

In October 2014, Duffy developed a "severe dental abscess" while visiting Seattle, "which required an emergency root canal" and a month-long recovery there. Id. at 53 (Second Am. Compl. ¶ 151). James approved Duffy's request to telework from Seattle during this period. Id. Upon returning to Washington, D.C. at the end of that month, however, Duffy began to experience "a systemic breakdown of her health as a result of stimuli overload and/or chronic hyperarousal of her nervous system." Id. at 53 (Second Am. Compl. ¶¶ 151-52). As a result, in November 2014, she "submitted a formal Reasonable Accommodation request to GAO's Reasonable Accommodations Coordinator, Colleen Marks . . . , seeking to work full time from her home in the Seattle area" or, in the alternative, "reassignment to the San Francisco field

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office or to a mission team with a presence in the Seattle office." Id. at 54 (Second Am. Compl. ¶ 155). After Duffy notified James of her "formal accommodation [r]equest," he told her "don't do that" and said that she "should instead request accommodation [through] the short term telework program" so her supervisors could "approve [it] internally." Id. (Second Am. Compl. ¶ 156). Based on that advice, Duffy withdrew her formal accommodation request. Id. (Second Am. Compl. ¶ 157). Duffy then requested a six-month short-term telework arrangement, which was approved. Id. at 54-55 (Second Am. Compl. ¶ 158). Duffy began working full-time from home near Seattle on December 1, 2014. Id. at 55 (Second Am. Compl. ¶ 159).

Between March 2015 and May 2015, Duffy "developed serious complications related to an improperly treated dental condition" that prevented her from returning to Washington, D.C. by May 30, 2015, when her six-month telework arrangement was scheduled to conclude. Id. at 59-60 (Second Am. Compl. ¶¶ 167, 174). At James's suggestion, Duffy requested and was granted a second short-term telework arrangement allowing her to continue to work from the Seattle area from June 2015 through November 2015. Id. at 60 (Second Am. Compl. ¶¶ 170-71). After Duffy expressed concerns to James about her ability to return to Washington, D.C. in December 2015, James recommended she "apply for a formal reasonable accommodation [through] Colleen Marks's [disability program] office." Id. at 60-61 (Second Am. Compl. ¶¶ 173-74). When Duffy asked Marks for "information about what she needed to submit with her formal Reasonable Accommodations . . . request," "Marks stated that [Duffy] needed to have her doctor provide the answers to a 'six-point questionnaire'" but "did not mention or provide any internal guidance on additional criteria related to granting [the] request." Id. at 61 (Second Am. Compl. ¶ 175). Duffy submitted her formal request in early October 2015, which included the completed six-point questionnaire along with additional medical documentation from two other

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doctors and a medical release permitting GAO staff to speak directly with Duffy's treating clinician. Id. at 64 (Second Am. Compl. ¶ 187).

On October 22, 2015, Duffy met with Marks and Lisa Briscoe, a Reasonable Accommodations Specialist, to discuss her formal accommodation request. Id. at 63, 65 (Second Am. Compl. ¶¶ 184, 190). Duffy alleges that, at this meeting, Marks "verbally denied" her request and "insisted" that Duffy had "not established (1) the presence of a disability under the ADA or (2) that functional limitations of that disability exist." Id. at 65 (Second Am. Compl. ¶ 190). When Duffy sought additional information, including the written policies supporting the denial of her request, Marks refused to furnish it and stated that, if Plaintiff disagreed with the decision, Marks "could convene the Accommodation Committee." Id. at 66 (Second...

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