Von Drasek v. Burwell

• Decision Date: 17 August 2015
• Docket Number: Civil Action No. 13–cv–0847 (KBJ)
• Citation: 121 F.Supp.3d 143
• Parties: Susan Von Drasek, Plaintiff, v. Sylvia Burwell, Defendant.
• Court: U.S. District Court — District of Columbia

121 F.Supp.3d 143

Susan Von Drasek, Plaintiff,

v.Sylvia Burwell, Defendant.

Civil Action No. 13–cv–0847 (KBJ)

United States District Court, District of Columbia.

Signed August 17, 2015

George Michael Chuzi, Elaine Lynette Fitch, Kalijarvi, Chuzi, Newman & Fitch, P.C., Washington, DC, for Plaintiff.

Wyneva Johnson, Andrea McBarnette, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

KETANJI BROWN JACKSON, United States District Judge

The United States Food and Drug Administration ("FDA") fired Plaintiff Susan Von Drasek from her job as an FDA chemist, after repeated warnings about her unsatisfactory performance. Von Drasek has bipolar disorder

, and she has brought the instant action against the FDA under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 –794f, claiming that her discharge violates that statute. Von Drasek's complaint makes three specific claims: (1) that the FDA failed to accommodate her disability; (2) that the FDA intentionally discriminated against her by terminating her employment because of her disability; and (3) that the FDA discharged her in retaliation for her request for accommodations.

Before this Court at present are the FDA's motion to dismiss, or in the alternative, motion for summary judgment (Mot. to Dismiss or, in the Alternative, for Summ. J. ("Def.'s Mot."), ECF No. 7), and Von Drasek's cross-motion for summary judgment (Pl.'s Cross–Mot. for Summ. J. ("Pl.'s Mot."), ECF No. 10).¹ The FDA argues that Von Drasek did not timely inform the agency of her need for any accommodations, and that, in any event, she has not established a prima facie case to support her failure-to-accommodate claim. (See Mem. in Supp. of Def.'s Mot. ("Def.'s Mem."), ECF No. 7, at 14–17.)² Moreover, the FDA argues that Von Drasek has failed to raise any genuine issue of fact regarding the intentional discrimination and retaliation claims, because the evidence demonstrates that her termination was the result of non-discriminatory and non-retaliatory factors. (Id. at 17–18.) For her part, Von Drasek argues that she is entitled to summary judgment on the failure-to-accommodate claim because her request for accommodations was timely and it is undisputed that the FDA failed to reassign her as requested, in violation of its obligations under the Rehabilitation Act. (See Pl.'s Opp'n to Def.'s Mot. & in Supp. of Pl.'s Mot. ("Pl.'s Mem."), ECF No. 10–1, at 10–11, 21–22.) Von Drasek also argues that she is entitled to summary judgment on her intentional discrimination and retaliation claims because she has direct evidence of the FDA's discriminatory and retaliatory animus. (Id. at 35–39.)

As explained fully below, this Court finds that Von Drasek's request for accommodations was quite late, and perhaps irresponsibly so, but was timely nevertheless because the FDA had not yet terminated Von Drasek's employment when it received her request, and thus the agency was still in a position to respond to it. However, because genuine issues of material fact remain regarding whether or not Von Drasek could have performed the essential functions of her job if she was reassigned as requested, entry of summary judgment in either party's favor is unwarranted. With respect to Von Drasek's intentional discrimination and retaliation claims, this Court will enter judgment in favor of the FDA because the Rehabilitation Act requires that the alleged discrimination or retaliation be the sole reason for the adverse employment action, and given the record here, no reasonable jury could conclude that animus regarding Von Drasek's request for accommodation and/or her underlying disability were the but-for cause of her final removal.

Accordingly, and for the reasons that follow, the FDA's motion to dismiss, or in the alternative, motion for summary judgment is GRANTED IN PART and DENIED IN PART , and Von Drasek's cross-motion for summary judgment is DENIED .

I. BACKGROUND

A. Facts

The underlying facts of this case are largely undisputed. In 1978, Von Drasek was diagnosed with a type of bipolar disorder

that produces symptoms such as depression and anxiety, and that "substantially limits major life activities, including sleeping, thinking and concentrating, processing information, impulse control, [and] cognitive abilities[.]" (Compl., ECF No. 1, ¶¶ 21–22; see also Pl.'s Ex. 4, Pl.'s Request for Reasonable Accommodation ("Pl.'s Reas. Acc. Req."), ECF No. 10–6, at 4.)³ Despite this diagnosis, Von Drasek apparently has enjoyed a lengthy and seemingly generally successful career as a chemist. The complaint extolls Von Drasek's accomplishments in the field, including a graduate degree in geochemistry, six publications, and awards and commendations for her performance. (Compl. ¶ 15; see also Pl.'s Ex. 1, Pl.'s Resume ("Resume"), ECF No. 10–3, at 5–10.) Furthermore, before joining the FDA, Von Drasek worked for eight years at the United States Department of Agriculture ("USDA"), where she consistently received "Fully Successful" performance ratings. (Compl.¶ 18.) According to Von Drasek, she left her post at the USDA only because the particular chemist position that she held was capped at a lower salary and performance level, meaning there was no room for promotion. (Compl. ¶ 19; see also Pl.'s Ex. 3, Aff. of Susan Von Drasek ("Van Drasek Aff."), ECF No. 10–5, ¶ 2.)

Von Drasek began working as a chemist for the FDA on April 13, 2008. (Compl. ¶ 20; Def.'s Stmt. of Undisputed Material Facts ("Def.'s Facts"), ECF No. 7, ¶ 1.) Significantly, Von Drasek did not inform anyone at the FDA of her bipolar condition diagnosis, nor did she request any accommodations at the time she began her tenure at FDA. (See Def.'s Facts ¶ 4.) By August of 2009, Von Drasek began having difficulty at work, and as a result, she sought private medical attention. (Pl.'s Reas. Acc. Req. at 4.) Once again, Von Drasek did not share with anyone at the FDA that she sought and was receiving medical attention for her previously diagnosed bipolar condition. (See Def.'s Facts ¶ 4.)

1. The Performance Improvement Plan

On April 1, 2010, Von Drasek's immediate supervisor, Rachel Dietzel, issued a Performance Improvement Plan ("PIP") (id. ¶ 23), which is a document that advised Von Drasek that her on-the-job performance was unacceptable and that she had 75 days to improve her work. (See Def.'s Ex. 1, Performance Improvement Plan ("PIP"), ECF No. 7–1, at 2.) The PIP stated that Von Drasek's performance had failed to meet minimally acceptable levels in two respects. First, according to the PIP, Von Drasek had failed to demonstrate technical knowledge and competency in her field throughout 2009 "because the technical quality of [her] work product [was] significantly lacking despite the amount of time [she] devoted to using instrumentation[,]" and she "lack[ed] the more advanced comprehension of what" she was doing. (Id. at 2–3.) Second, the PIP stated that Von Drasek failed in "program and project management and performance[,]" given the "repeated deficiencies" in her analyses. (Id. at 3.) The PIP highlighted that Von Drasek "either [did] not seek guidance, or [was] not capable of recognizing when [she] need[ed] assistance" (id. ), and that she "repeatedly failed to meet deadlines" (id. ). The PIP also described what Von Drasek needed to do in order to bring her performance up to the "minimally successful" threshold, gave her 75 days to improve, and specifically warned her that failure to improve could lead to demotion or removal. (Id. at 6.)

On September 29, 2010—more than 180 days after she received the PIP document—Von Drasek contacted her treating physician, Dr. Jayashree Coca, M.D., M.P.H., and asked her to fill out a Family Medical Leave Act ("FMLA") form. (Compl.¶ 24.) Dr. Coca completed the form as requested, identifying Von Drasek's bipolar diagnosis. (Id. ¶¶ 24 –25; see also Pl.'s Ex. 5, ECF No. 10–7, at 1.) However, Von Drasek did not give the FMLA form to Dietzel or to anyone else at the FDA before Dietzel once again contacted Von Drasek regarding her poor performance.

2. Proposed Removal And Request for Accommodation

This next contact took place on October 1, 2010, exactly six months after the PIP issued. Dietzel informed Von Drasek that her performance still had not improved and that Dietzel was proposing her removal. (Compl. ¶ 25; see also Def.'s Ex. 2, Proposal to Remove ("Prop. to Remove"), ECF No. 7–1, at 8–14.) Four days later, on October 5, 2010, Von Drasek notified Dietzel that she had a disability; that she was in the process of getting her FMLA paperwork together; and that she was requesting accommodations. (Compl. ¶ 26; Def.'s Ex. 3, ECF No. 7–1, at 16.) This was the first time that Von Drasek had disclosed the fact of her disability to anyone at the FDA, and it was her first request for accommodation. Von Drasek followed up on October 8, 2010, by submitting the FMLA paperwork that Dr. Coca had completed. (Compl.¶ 27.) Then, on October 13, 2010, Von Drasek wrote to both Diezel and the FDA's Labor and Employee Relations Specialist—through counsel—"to address issues involving the proposed removal and to reiterate Plaintiff's request for accommodation." (Id. ¶ 28; see also Pl.'s Ex. 7, ECF No. 10–9, at 1–2 (letter from counsel requesting an extension of time to respond to the proposed removal because Von Drasek was waiting for additional information from Dr. Coca).)

Over the next few weeks, Von Drasek's attorney contacted the FDA's reasonable accommodations specialist to ascertain the agency's process for requesting accommodations. (Compl.¶ 29). Thereafter, on November 4, 2010, Von Drasek submitted a formal, written request for accommodation, which included a letter from Dr. Coca detailing the symptoms of Von Drasek's disability and its effect on her job performance. (Compl. ¶ 29; see also Pl.'s Reas. Acc. Req. at 4–5.) Specifically, Dr. Coca explained that

Von Drasek came to see me because she was having difficulties at work.

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