Smith v. Lynch

• Decision Date: 13 May 2015
• Docket Number: Civil Action No. 10–1302 (BAH)
• Citation: 106 F.Supp.3d 20
• Parties: Rhonda Smith, Plaintiff, v. Loretta Lynch, Attorney General of the United States Defendant.
• Court: U.S. District Court — District of Columbia

106 F.Supp.3d 20

Rhonda Smith, Plaintiff,

v.Loretta Lynch, Attorney General of the United States Defendant.

Civil Action No. 10–1302 (BAH)

United States District Court, District of Columbia.

Signed May 13, 2015

Alan Banov, Stephanie Lynn Rapp, Alan Banov & Associates, Silver Spring, MD, for Plaintiff.

Wyneva Johnson, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

The plaintiff, Rhonda Smith, has been a long-time employee of the Department of Justice's ("DOJ") Office of Justice Programs ("OJP") and, since July 2006, worked as a GS–13 staff accountant in OJP's Customer Service Branch. Compl. ¶¶ 7, 21, ECF No. 1. She filed this suit against the defendant, Attorney General, in her official capacity,¹ alleging that, between 2007 and 2009, she was subjected to a hostile work environment and retaliation because she is African–American and suffered from carpal tunnel syndrome ("CTS") in her right hand, in violation of Title VII, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq . Compl. ¶¶ 240–79. Pending before the Court is the defendant's Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mot."), ECF No. 55, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56. For the reasons set forth below, the defendant's motion is granted.

I. BACKGROUND

The plaintiff has alleged myriad forms of mistreatment by OJP over a span of several years, allegedly due to both her race and her CTS. See generally Compl. Although the plaintiff initially alleged that the defendant failed to accommodate her asthma and that the defendant "discriminated against her by ‘improperly adjusting her service computation dates' and ‘delaying her a [sic] within-grade increase in [salary in] 2008,’ " the plaintiff subsequently withdrew those claims. Pl.'s Opp'n Def.'s Mot. ("Pl.'s Opp'n"), ECF No. 59 at 2 n.1–2.² Set out below is background to assess the five³ remaining actions by OJP that the plaintiff alleges establish her claims of racial and disability discrimination, hostile work environment, and retaliation.See id. ¶¶ 2–3.

A. The Plaintiff's Leave History And Onset Of CTS Symptoms

Approximately two months after the plaintiff started in her role as a staff accountant in the OJP's Customer Service Branch, in September 2006, she was issued a "Memorandum of Counseling and Possible Leave Restriction" by her first-line supervisor, Darlene Mongelli. See Pl.'s Opp'n Ex. 14 (the "Leave Counseling Memo") at 1, ECF No. 59–19.⁴ The Leave Counseling Memo noted that, as of September 15, 2006, the plaintiff had accrued two hours of annual leave, 134.50 hours of leave without pay (LWOP), and a deficit of 114.75 hours of sick leave. Id. The Leave Counseling Memo stated that the plaintiff's prior leave history "shows that there is a long-term pattern of frequent unscheduled absences." Id. The plaintiff was advised that she "must improve [her] attendance," id., and she was given specific procedures to follow before taking additional leave, id. at 2–4. Specifically, the Leave Counseling Memo stated the plaintiff "must obtain verbal approval of" any unscheduled leave and that she submit requests for scheduled leave "at least 1 workday prior to the scheduled leave." Id. at 2 (emphasis in original). The Leave Counseling Memo further warned that if the plaintiff were "absent without leave having been approved, the absence [would] be recorded as absence without official leave (AWOL)." Id.

The plaintiff was specifically required by the Leave Counseling Memo "to promptly arrive at work at [her] regularly scheduled time ... and to work [her] tour of duty each workday." Id. at 3. The Leave Counseling Memo required that the plaintiff notify the plaintiff's supervisor or second line supervisor, Joanne Suttington, if the plaintiff were running late, id., and required that she submit "the original copy of a medical certificate signed by the attending physician" for any medical absence resulting in more than three consecutive missed days of work, id. at 3.⁵ The plaintiff avers that the Leave Counseling Memo "did not take into account the fact that Plaintiff's absence [sic] had resulted largely from three operations and asthma attacks." Pl.'s Response to Def.'s Statement of Material Facts not in Genuine Dispute ("Pl.'s SMF") ¶ 4, ECF No. 59–2.

Beginning in March 2007, the plaintiff experienced pain in her right hand and wrist. See Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SMF") ¶ 8, ECF No. 55; Pl.'s SMF ¶ 8. OJP was first alerted to the plaintiff's symptoms when she submitted a note from her doctor stating she was "totally incapacitated" from March 23 through March 30, 2007. Def.'s Mot. Ex. 20 at 4, ECF No. 56.⁶ That period of total incapacitation was later extended through April 16, 2007, after the plaintiff submitted another note from her physician. Def.'s Mot. Ex. 21 at 6, ECF No. 56. The plaintiff returned to "light duty status lifting no more than 5 pounds" on April 17, 2007, Def.'s Mot. Ex. 22 at 8, ECF No. 56, but was prohibited from "keyboarding" from May 4 through May 8, 2007, Def.'s Mot. Ex. 23 at 10, ECF No. 56. The record indicates that the plaintiff had no restrictions on her work from May 9, 2007 through June 29, 2007, when the plaintiff submitted a physician's note stating the plaintiff had "Right Carpal Tunnel Syndrome" and she was "to avoid using the keyboard for the next 30 days." Def.'s Mot. Ex. 24 at 12, ECF No. 56. Thus, the plaintiff provided documentation of temporary work restrictions covering March 23, 2007 through May 8, 2007, and June 29, 2007 through July 29, 2007.See supra .

On July 3, 2007, OJP's Reasonable Accommodations Coordinator, Phillip Merkle, "informed Plaintiff of her right to request a reasonable accommodation." Pl.'s SMF ¶ 11. Three days later, the plaintiff left a voicemail for an OJP human resources representative, indicating that she "had spoken with her doctor, and he is recommending that [the plaintiff] wait until all of her test results are in and [her doctor] has reviewed them before she completes the reasonable accommodation documentation." Def.'s Mot. Ex. 25 at 7, ECF No. 55–20. The plaintiff avers that her doctor told her that "he would be unable to make [the] assessment" as to whether her condition was "long-term or permanent" until after the plaintiff had been seen by a specialist. Pl.'s SMF ¶ 12.

Nine days prior to the expiration of her keyboarding restrictions, on July 20, 2007, the plaintiff received a memorandum from her supervisor advising the plaintiff that she was not "expect[ed] to report back to work until your doctor indicates that you can resume your full duties and responsibilities." Def.'s Mot. Ex. 26 at 2, ECF No. 55–21. The memorandum advised the plaintiff that OJP would approve accrued leave or leave without pay ("LWOP"), but not advance leave, due to [the plaintiff's] negative leave balance." Pl.'s SMF ¶ 13. The plaintiff signed the memorandum to acknowledge receipt, but wrote along with her signature that "[t]he information contained in this memorandum is not accurate." Def.'s Mot Ex. 26 at 2. Pursuant to the memorandum directing the plaintiff to advise her supervisor "within five (5) calendar days" of any information "which [the plaintiff] believe[d would] assist [OJP] in the review of this matter," id., the plaintiff "wrote a memo to her supervisor, Ms. Mongelli, indicating that her 30–day keyboarding restriction was to expire on July 28, 2007, and [the plaintiff] anticipated ‘being able to fully resume all of [her] duties' " as of that date, Pl.'s SMF ¶ 14. Following the expiration of the plaintiff's total keyboarding restriction, the plaintiff "submitted a doctor's note, dated July 30, 2007, indicating that [the plaintiff] ‘will be able ... to return to work ... with restrictions' and that she ‘(1) use a brace [and] (2) keyboard 4 hours/day with breaks every hour of typing for 5 minutes.’ " Pl.'s SMF ¶ 16; see Def.'s Mot. Ex. 27 at 14, ECF No. 56.⁷

The plaintiff underwent carpal tunnel release surgery in January 2008 and returned to work six months later, in July 2008. Compl. ¶¶ 205, 207. While the plaintiff was recuperating from surgery, OJP rearranged the plaintiff's office furniture and installed an ergonomic keyboard. See Pl.'s Opp'n Ex. 7 at 12, ECF No. 59–12. OJP personnel also researched and installed voice activated software on the plaintiff's computer. Def.'s Reply Ex. 5 at 3–6, ECF No. 62–5. Less than a month after the plaintiff returned to work, the plaintiff once again went out on medical leave for four weeks because she was "physically unable to work at all." Pl.'s Opp'n Ex. 34, at 1, ECF No. 59–33.

B. Alleged Discriminatory And Retaliatory Incidents

The five OJP actions, see supra at 2, underlying the plaintiff's claims are related primarily to conduct alleged to have occurred between March and August 2007, during which time the plaintiff was absent from work for approximately thirty percent of the possible work days.⁸ The alleged conduct is detailed below.

1. Holding Plaintiff Responsible For Co–Workers' Assignments (April–June 2007)

The plaintiff claims that she was held responsible for her co-workers' assignments, known as "closeouts." Compl.

¶¶ 104–107; 125–128. The plaintiff was originally assigned to review two co-workers closeouts but, when she was out on leave in March and April of 2007, the plaintiff's supervisor reassigned those duties to Wendy Lynch, who is Asian–American. Pl.'s

Opp'n Ex. 4 at 19, ECF No. 59–9. The plaintiff states that on June 25, 2007, she received an email from Mongelli stating "that the reassignment of review responsibilities [away from the plaintiff] was only for the duration of [the plaintiff's] absence," and instructed the plaintiff to resume reviewing one of her co-worker's closeouts. Id. at 20. The plaintiff alleges that neither she nor her co-workers were informed of this arrangement before June 25, 2007,...