Psak v. Bernhardt
| Decision Date | 01 June 2020 |
| Docket Number | Civil Action No. 18-115 (RDM),Civil Action No. 14-116 (RDM) |
| Parties | JERRE PSAK, Plaintiff, v. DAVID BERNHARDT, Secretary of the Department of the Interior, Defendant. |
| Court | U.S. District Court — District of Columbia |
This case comes before the Court on Defendant's motion for summary judgment on all sixteen counts of Plaintiff's two operative complaints. Dkt. 52; Dkt. 34 (Am. Compl.); No. 18-115 (Dkt. 1).2 These complaints, stemming from two suits brought by Plaintiff that have since been consolidated, Minute Order (Apr. 25, 2018), challenge a variety of Defendant's actions as violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. See Dkt. 34 (Am. Compl.); No. 18-115 (Dkt. 1). Plaintiff alleges that the U.S. Park Police ("Park Police"), a component of Defendant Department of the Interior, took various retaliatory actions against her because of her prior equal employment opportunity ("EEO") activity, thus violating Title VII. Dkt. 34 at 15-20, 24-27 (Counts 1-4, 9-12); No. 18-115 (Dkt. 1 at 7) (Compl. ¶¶ 19-24) (Count 2-3). She also alleges that the Park Police further violated Title VII bysubjecting her to a sex-discriminatory hostile work environment. Dkt. 34 at 28 (Count 13); No. 18-115 (Dkt. 1 at 7) (Compl.) (Count 2). Finally, Plaintiff alleges that the Park Police violated the Rehabilitation Act both by making unnecessary requests for her medical information, Dkt. 34 at 20-24 (Counts 5-8), and denying her reasonable request for an accommodation, No. 18-115 (Dkt. 1 at 6) (Compl. ¶¶ 16-18) (Count 1).
For the reasons that follow, the Court will GRANT in part and DENY in part Defendant's motion for summary judgment. The Court will grant summary judgment on all claims except for Plaintiff's claims that the Park Police (1) retaliated against her by requiring her to choose between surrendering or retiring her canine partner, Dkt. 34 at 10-13 , (2) retaliated against her by requiring in December 2008 and January 2009 that she submit additional medical information or submit to a fitness-for-duty examination in order to return to work, id. at 26-27 , and (3) made unnecessary medical inquiries of her in December 2008 and January 2009 in violation of the Rehabilitation Act, id. at 22-23 .
Because this case is before the Court on Defendant's motion for summary judgment, this section recounts only the facts that the parties do not dispute. See Fed. R. Civ. P. 56.; Angelex Ltd. v. United States, 272 F. Supp. 3d 64, 67 n.1 (D.D.C. 2017). Plaintiff Jerre Psak is an Asian-American female who was formerly employed as a canine officer within the canine unit of the Park Police in Washington, D.C. Dkt 55-11 at 1 (Pl. SMF ¶¶ 1, 3).
1. 2004 Non-Selection and EEO Complaint
Around December 2003, while employed as a canine officer in Washington, D.C., Plaintiff first applied for an open canine officer position in the Park Police's San Francisco Field Office ("SFFO"). Dkt. 55-1 at 3 (Psak Dep. 15:2-10). In 2005, following her non-selection for the position, Plaintiff filed an EEO complaint. Dkt. 34 at 4 ; Dkt. 55-1 at 3 (Psak Dep. 15:2-10).
2. 2008 Non-Selection and EEO Complaint
On April 23, 2007, the Park Police published a memorandum announcing another canine officer position in the SFFO. Dkt. 55-2 at 128 (Ex. B-14). In May 2007, Plaintiff applied for that position. Dkt. 52 at 3 (Def. SUMF ¶ 2); Dkt. 55-1 at 3-4 (Psak Dep. 15:25-16:4). At that time, Plaintiff was still employed in Washington, D.C. and had never worked in the SFFO. Dkt. 52 at 3 (Def. SUMF ¶ 3). Another experienced canine handler from Plaintiff's own D.C. office—Rob Berretta—also applied for the position. Dkt. 52-1 at 5 (Psak Dep. 18-20:9),
Gerard McCarthy was the selecting official for the SFFO canine officer position, and Jason Wu was the recommending official. Dkt. 52 at 4 (Def. SUMF ¶ 4); Dkt. 52-2 (Wu Dep. 26:18-21). Wu recommended that Officer Jesse Petersen be selected for the canine officer position. Dkt. 52 (Def. SUMF ¶¶ 7, 11); Dkt. 52-2 at 6 (Wu Dep. 35:2-15). Petersen was employed in the SFFO and was "on the well-qualified list of candidates" along with Plaintiff and Berretta, but Petersen was not a canine handler at the time of he was selected for the position. Dkt. 52 (Def. SUMF ¶ 11); Dkt. 52-2 at 3 (Wu Dep. 23:4-24:20); Dkt. 55-2 at 132 (Ex. B-15); Dkt. 52-1 at 5 (Psak Dep. 18-20:9). Plaintiff attests that she "didn't have any personal contact with . . . McCarthy" prior to submitting her 2007 application but that, after she submitted the application, she called him on the telephone to let him know that she "was very much interestedin filling the vacancy" and that "this was the second time [she] had applied, [and] that [she] had been a handler in D.C. since [1998]." Dkt. 55-1 at 4 (Psak Dep. 16:10-23). Petersen was selected on or about June 16, 2008. Dkt. 55-10 at 53 (McCarthy Aff. ¶ 7).
On May 7, 2008, Plaintiff initiated a second EEO complaint against the Park Police, alleging a hostile work environment, "unrelated to the instant action." Dkt. 34 at 4 ; Dkt. 55-2 at 4 (Report on Investigation). In July 2008, Plaintiff alleges that she "contacted an EEO Counselor . . . regarding the matters underlying the instant" action. Dkt. 34 at 24 .
3. 2008-2009 Medical Leave
On or about July 23, 2008, Plaintiff informed the Park Police that she would be taking a leave of absence effective immediately for "stress[-]related reasons." Dkt. 52 at 5 (Def. SUMF ¶ 18); Dkt. 52-1 at 4 (Psak Dep. 31:19-22, 32:12-20); Dkt. 55-2 at 117 (Ex. B-13); id. at 192 (Ex. B-19) (letter from Plaintiff's doctor stating that, during her July 25, 2008 visit, she "reported feeling stressed and depressed over incidents at work—in particular a job prospect (transfer to California that would have placed her closer to her family) was rejected"). On September 4, 2008, Kenneth Brodie, Commander of the Services Division of Park Police, sent Plaintiff a letter confirming that she had notified her employer of her "stress leave" and that she "would not be reporting for work for an extended period of time due to an alleged performance of duty injury." Dkt. 55-2 at 117 (Ex. B-13). The letter noted that, as of its date of issuance, "[P]laintiff had provided no medical documentation to support her failure to return to work." Id. The letter continued:
Plaintiff responded to the request by submitting a September 8, 2008 letter from her psychotherapist, with whom she had been meeting twice a week. Dkt. 52-8 at 1 (Ex. 8). The letter explained that Plaintiff's symptoms, which "meet the . . . criteria for Post Traumatic Stress Disorder and Major Depression Disorder," "seem to exacerbate while she is at the workplace" and that Plaintiff "feels that she is unable to perform her job[-]related responsibilities in a professional manner." Id. The letter went on to note that Plaintiff's "prognosis is positive," but her doctor "strongly recommend[ed] that she does not return to her job until her symptoms have stabilized." Id. at 2 (Ex. 8).
On September 26, 2008, the Park Police informed Plaintiff that "Park Police officers were coming to retrieve her badge, gun, car and credentials while she was off work on extended sick leave." Dkt. 52 at 6 (Def. SUMF ¶ 26); Dkt 52-9 (Ex. 9). In the same letter, the Park Police informed Plaintiff that it would either retrieve "the canine assigned to her or she could elect to keep her canine after the Park Police retired [the] dog," which was the property of the Park Police. Id. at 7 (Def. SUMF ¶¶ 33-34); Dkt 52-9 at 1 (Ex. 9); Dkt. 52-1 at 5 (Psak Dep 75:12-76:24). Plaintiff attests that she chose to retire her canine partner on October 2, 2008, so that the dog would not be kenneled. Dkt. 55-1 at 15 (Psak Dep. 158:4-18, 159:12-15).
Dkt. 53-2 (Ex. 12). The Park Police included with this request a medical questionnaire to be completed by Plaintiff's doctor. Id. (Def. SUMF ¶¶ 38-39); see Dkt. 53-2 at 2 (Ex. 12).
On November 15, 2008, Plaintiff's doctor informed the Park Police by letter that that Plaintif...
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