Porter v. Jackson

• Decision Date: 13 November 2009
• Docket Number: Civil Action No. 04-2121 (PLF).
• Citation: 668 F.Supp.2d 222
• Parties: Elizabeth D. PORTER, Plaintiff, v. Lisa P. JACKSON, Administrator, Environmental Protection Agency, Defendant.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — District of Columbia

668 F.Supp.2d 222

Elizabeth D. PORTER, Plaintiff, v. Lisa P. JACKSON, Administrator, Environmental Protection Agency, Defendant.¹

Civil Action No. 04-2121 (PLF).

United States District Court, District of Columbia.

November 13, 2009.

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Bruce J. Terris, Terris, Pravlik & Millian, LLP, Washington, DC, for Plaintiff.

Jeremy S. Simon, Judith A. Kidwell, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on defendant's motion for summary judgment. Plaintiff was formerly employed at the Environmental Protection Agency. She brought this action alleging that EPA discriminated against her on the basis of her disability and her sex, and retaliated against her for pursuing past claims of discrimination, in violation of the Rehabilitation Act, 29 U.S.C. §§ 791 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. After careful consideration of the parties' papers, the relevant case law and statutes, and the entire record in this case, the Court will grant defendant's motion.²

I. BACKGROUND

Plaintiff Elizabeth Porter worked at EPA from 1991 until 2001. See Compl. ¶ 11. While at EPA, plaintiff worked as a GS-14 Environmental Protection Specialist in the Office of Policy, Planning and Evaluation, later reorganized as the Office of Environmental Information. Plaintiff has a migraine condition that affected her as often as daily while she was working at EPA. See Opp., Ex. 14, Affidavit of Elizabeth D. Porter ("Porter Aff.") ¶ 10.

Plaintiff alleges that EPA took various adverse employment actions because of her migraine disorder and her sex. The relevant facts are described below.

A. Delay in Processing Plaintiff's CRADA Application

In 1993, plaintiff developed a mapping software program that was later named "ECOVIEW." She desired to collaborate on its development with private firms pursuant to a Cooperative Research and Development Agreement ("CRADA"). See Compl. ¶¶ 168-70. A CRADA is an agreement between a federal laboratory and a non-federal party under which the parties jointly provide resources toward a specific research or development project. See 15 U.S.C. § 3710a(d)(1). Plaintiff submitted a formal application for a CRADA to the Technology Transfer Office of EPA in January 1994. See Compl. ¶ 46. EPA did not approve the CRADA until June 27, 1997— more than three years after plaintiff submitted her formal application. See Mot., Defendant's Statement of Material Fact not in Genuine Dispute ("Def. Facts") ¶ 5.

On or about April 20, 1997, three years after plaintiff submitted her CRADA application, but before EPA approved the CRADA, plaintiff initiated contact with an EEO Counselor. See Opp., Ex. 20 at 3. On July 9, 1997, plaintiff filed a formal EEO complaint alleging sex and disability discrimination with regard to the processing of her CRADA. See Opp. Ex. 1 at 4. On October 31, 1997, after plaintiff's CRADA had been approved, EPA's Office of Civil Rights dismissed plaintiff's complaint as moot. See Opp., Ex. 2 at 1. Plaintiff appealed to the EEOC, but was unsuccessful.

B. Plaintiff's Alleged Disability and Requested Accommodation

Plaintiff alleges that in 1993 she requested to work from her home in Annandale, Virginia on a part-time basis because of her migraines, a request her employer granted. See Compl. ¶ 28. Beginning in 1995, plaintiff's then supervisor, Arthur Koines, permitted her to continue to work from home part-time under a "Pilot Flexible Workplace Project." See Def. Facts ¶ 2; Opp., Plaintiff's Statement of Material Facts as to Which There is a Genuine Dispute ("Pl. Facts") ¶ 2. Mr. Koines later permitted plaintiff to work from home full time. See Opp., Ex. 16, Deposition of Arthur Koines at 59. In July 1999, Brendan Doyle became plaintiff's new supervisor and permitted her to continue working from home full-time pursuant to an alternate workspace agreement. See Def. Facts ¶ 6; Pl. Facts ¶ 6.

Plaintiff believes that her health continued to deteriorate during this time. See Porter Aff. ¶ 9. Based on suggestions provided by her physicians that the air quality and environmental triggers in and around the District of Columbia were possible contributors to her migraines, plaintiff began to consider moving from the District of Columbia metropolitan area. See id. ¶¶ 12-14. In August 1999 plaintiff discussed her interest in moving to North Carolina with her prospective supervisor, Barry Nussbaum. See Porter Aff. ¶ 19. Although Mr. Nussbaum was initially supportive of the idea, after further discussion, plaintiff's second line supervisor, Reginald Cheatham, disapproved the request in March 2000. See Def. Facts ¶¶ 10-11, 14; Pl. Facts, Additional Material Facts as to Which there is a Genuine Dispute ("Pl. Add. Facts") ¶ 1(d). Plaintiff and her family had begun planning the move and continued with it despite Mr. Cheatham's denial of permission. See Pl. Add. Facts ¶ 1. On July 8, 2000, at the request of EPA, and based on medical documents submitted by plaintiff, Dr. Christopher Holland issued a letter to EPA stating that plaintiff had a disability that affected her major life activities and recommending that EPA provide certain accommodations to plaintiff. See Mot., Ex. 14 ("Holland Letter") at 5-6. On July 12, 2000, Mr. Cheatham denied plaintiff's request to work from home full-time in Wilmington, North Carolina. See Def. Facts ¶ 18.

Plaintiff did not return to work, and on November 15, 2000 the agency sent her a letter stating that she was considered absent without leave. See Def. Facts ¶ 19. On January 29, 2001, Mr. Cheatham issued a proposed notice of removal. See id. ¶ 20. On May 10, 2001, EPA notified Plaintiff of its decision to terminate her employment effective May 26, 2001. See Def. Facts ¶ 21. After plaintiff received the notice of termination, but before its effective date, she found another job with the Army Corps of Engineers, but the Corps would not hire her if she were in fact removed from federal service. See id. ¶ 21.³ At plaintiff's request, EPA changed the effective date of termination to June 27, 2001 to allow plaintiff to be hired by the Army Corps of Engineers. See id. ¶ 22. As a result, plaintiff's personnel record shows that she transferred from EPA to the Department of Defense. See id.

II. STANDARD OF REVIEW

Summary judgment may be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). "A fact is `material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are `irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505).

An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C.Cir.2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C.Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C.Cir.1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir. 2007).

The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED.R.CIV.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). She is required to provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the nonmovant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505; see Scott v. Harris, 550 U.S. at 380, 127 S.Ct. 1769 ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is `no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support [her] claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C.Cir.2001).

III. DISCUSSION

Title VII provides, in pertinent part, that "[a]ll personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). Section 501 of the Rehabilitation Act, 28 U.S.C. § 791, is the exclusive remedy for federal employees alleging that federal agencies engaged in disability discrimination. See Taylor v. Small, 350 F.3d 1286, 1291 (D.C.Cir.2003); see also Bonieskie v. Mukasey, 540...