Carter v. Bridenstine

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) KIM L. CARTER, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-1752 (ABJ) ) JAMES F. BRIDENSTINE, ) Administrator, ) National Aeronautics ) and Space Administration, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

Plaintiff Kim L. Carter brought this lawsuit under the Rehabilitation Act of 1973, 29 U.S.C.

§ 701 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age

Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., against the

Administrator of the National Aeronautics and Space Administration (“NASA”), James F.

Bridenstine, alleging that NASA unlawfully denied her reasonable accommodations for her

disability, discriminated and retaliated against her due to her participation in protected activities

and membership in protected classes, and exposed her to a hostile work environment. She also

contends that due to the intolerable environment created by those unlawful acts, she was

constructively discharged from her job. Compl. [Dkt. # 1].

Pending before the Court is defendant’s motion for summary judgment. Def.’s Mot. for

Summ. J. [Dkt. # 14] (“Def.’s Mot.”). He argues that plaintiff has failed to show she was denied

a reasonable accommodation, that she has not come forward with evidence of discrimination or

retaliation, and that she has not shown that her working conditions were objectively hostile such that she was constructively discharged. See generally Mem. in Supp. of Def.’s Mot. for Summ. J.

[Dkt. # 14] (“Def.’s Mem.”).

While plaintiff had the right to expect that she could be supervised without being yelled at,

and there is no question that she suffered from serious medical conditions exacerbated by stress,

there are no genuine disputes with respect to any material fact at issue, and the defendant is entitled

to judgment as a matter of law.

BACKGROUND

The parties have submitted extensive briefing and a large number of exhibits in this case.

To understand the context of the instant matter, it is necessary to review the history of plaintiff’s

protected activities at NASA. Except where noted, the following facts are not in dispute.

I. Plaintiff’s Employment History

Plaintiff worked for NASA at its headquarters in Washington, D.C. until her retirement on

March 3, 2017. Def.’s SOF [Dkt. # 14] ¶ 1; Pl.’s SOF [Dkt. # 18-1] ¶ 1. Plaintiff is an African

American woman. Def.’s SOF ¶ 3; Pl.’s SOF ¶ 3. In 2014, she was a Program Specialist in the

Office of International and Interagency Relations (“OIIR”) and was at a GS-12 pay grade. Def.’s

SOF ¶ 4; Pl.’s SOF ¶ 4. From 2009 until 2017, DeVon Fleming 1, an African American woman,

and Albert Condes served as plaintiff’s first and second level supervisors respectively. Def.’s SOF

¶¶ 2, 3; Pl.’s SOF ¶¶ 2, 3.

II. January 2015 Desk Audit

In January 2015, plaintiff requested that her employer undertake a “desk audit.” Def.’s

SOF ¶ 6; Pl.’s SOF ¶ 6. A desk audit is conducted by a federal agency to determine if the duties

1 The spelling of Fleming’s first name varies throughout the pleadings and exhibits presented in this case. Where text has been quoted directly, the spelling of her name (as either Devon or DeVon) has been copied exactly. 2 and responsibilities in the position description for a certain job within the agency comport with the

activities actually being carried out by the employee holding that job. Def.’s SOF ¶ 7; Pl.’s SOF

¶ 7. This leads to a determination of whether the pay grade level assigned to the employee is an

accurate reflection of the work she is performing. Id. Plaintiff’s desk audit resulted in a

determination that she was performing at a GS-9 level and not a GS-12 level. Def.’s SOF ¶ 8;

Pl.’s SOF ¶ 8. Plaintiff disputes the results of the desk audit, and she maintains that she was

performing work at a level of GS-12 or higher. Pl.’s SOF ¶¶ 8–9.

Following the desk audit, Fleming, as plaintiff’s supervisor, was required to choose

between downgrading plaintiff to a GS-9 level or assigning her new tasks to meet the GS-12

position description. Def.’s SOF ¶ 9; Pl.’s SOF ¶ 9. Fleming chose to keep plaintiff at the GS-12

level by making sure she was performing assignments that met the GS-12 criteria and by creating

a new position description for the job. Def.’s SOF ¶¶ 9–10; Pl.’s SOF ¶¶ 9–10. Plaintiff contends

that the new position description did not accurately reflect the work she had been performing. Pl.’s

SOF ¶ 10. After receiving the desk audit results, plaintiff filed an appeal with the Office of

Personnel Management (“OPM”), which was still open at the time of her retirement. Def.’s SOF

¶¶ 11–12; Pl.’s SOF ¶¶ 11–12.

III. Plaintiff’s 2015 Harassment Allegations and Investigation

On October 21, 2015, plaintiff completed an anti-harassment questionnaire and submitted

it to NASA, naming Fleming, Condes, and Michael F. O’Brien as alleged harassers. 2 Def.’s SOF

¶ 16; Pl.’s SOF ¶ 16; Ex. 9 to Pl.’s Opp. [Dkt. # 18-11] (“Questionnaire”). NASA’s anti-

harassment policy, which is separate from its Equal Employment Opportunity (“EEO”) process,

“involves a set of procedures that seeks to investigate and resolve potential harassment in the

2 It is unclear from the record what role Michael F. O’Brien held at NASA. 3 workplace before it becomes severe and pervasive.” Def.’s SOF ¶¶ 17–18; Pl.’s SOF ¶¶ 17–18.

Although plaintiff alleged several instances of discrimination and harassment by her supervisors,

a Human Resources Specialist, Tiffany Schuffert, tasked with responding to the questionnaire in

conjunction with NASA’s Office of General Counsel, found that only two allegations could

properly be investigated under NASA’s policy. Decl. of Tiffany Schuffert, Ex. 4 to Def.’s Mot.

[Dkt. # 14-4] (“Schuffert Decl.”) at ¶¶ 1, 13–17. The two instances, alleging “loud yelling” by

Fleming, took place in March 2015 and May 2015. Id. ¶ 17. 3 Plaintiff maintains that the decision

regarding her questionnaire “ignored substantial evidence of endemic bullying and harassment by

[p]laintiff’s immediate supervisor, Ms. Devon Fleming and her second-level supervisor, Mr.

Albert Condes.” Pl.’s SOF ¶ 19.

NASA’s Anti-Harassment Policy states in sections 1.2.3, 1.2.3.4., and 1.2.3.5. that “[i]n

responding to specific allegations of harassing conduct, supervisors and managers shall: . . . [a]ct

as . . . Fact Finder to conduct fact-findings into allegations of harassment where fact-finding is

necessary . . . [and t]ake appropriate corrective action . . . as necessary after consultation and

notification of appropriate officials.” Ex. 1 to Schuffert Decl. [Dkt. # 14-4] (“Anti-Harassment

Procedures”) at 10–11. The procedures also state at Section 1.2.5 that, “[t]he management official

shall normally be the next higher level supervisor or manager in the chain of command. . . .” Id.

at 11. Based on these policies, and after discussion with the Office of General Counsel, Schuffert

3 It is unclear from the timeline provided by plaintiff in the anti-harassment questionnaire which incidents of yelling were the two Schuffert acknowledged in her declaration. There is one clear reference to the “negative loud yelling situation” on March 29, 2015, but plaintiff also states in her questionnaire that “I have been in DeVon Fleming office, and numerous occasions where she has tried to create negative loud yelling situation when I was in her office.” Questionnaire at 9. The EEO complaint filed on April 5, 2016, plaintiff identifies two precise dates of alleged yelling by Fleming: March 29, 2015 and May 3, 2015. See Ex. 19 to Pl.’s Opp. [Dkt. # 18-21] at 1. That information, however, is not included in the anti-harassment questionnaire. 4 designated Condes – plaintiff’s second-level supervisor and Fleming’s immediate supervisor – to

investigate the allegations. Schuffert Decl. ¶ 18. Plaintiff claims that it was improper for Condes

to investigate “his own conduct in violation of the anti-harassment policy . . . .” Pl.’s SOF ¶ 20.

As part of his investigation, Condes attempted to meet with plaintiff, and she initially

refused. Def.’s SOF ¶ 21; Pl.’s SOF ¶ 21. Condes sent an email to plaintiff stating “I would very

much like to ask you to reconsider speaking with me . . . . You are not obligated to attend [a

meeting], but it will make it difficult for me to address your concerns if I can’t hear your

perspective.” Def.’s SOF ¶ 21; Pl.’s SOF ¶ 21. Over the course of the investigation, Condes

ultimately interviewed plaintiff, as well as Fleming and at least one other individual. Schuffert

Decl. ¶ 19. Condes concluded there had not been a violation of the Anti-Harassment Policy, and

the matter was closed. Id. ¶ 21. 4

IV. Plaintiff’s October 2015 Request for Accommodation

Plaintiff submitted a request for reasonable accommodation form to NASA on October 23,

2015. Def’s SOF ¶ 32; Pl.’s SOF ¶ 32; Ex. 15 to Pl.’s Opp. [Dkt. # 18-17] (“Request 1”). In it,

she stated that “[d]ue to the hostile and toxic work environment in the Office of International and

Interagency Relations (OIIR), I respectfully request to be transfered [sic] to another office. Until

my request is granted, I would like either to telework from home and or be put on paid

administrative leave.” Request 1 at 1. Plaintiff later confirmed with Fleming that that she was

4 Plaintiff later explained in her April 2016 EEO complaint, discussed in infra section VII and in her deposition, that the two incidents of yelling on March 29, 2015 and May 3, 2015 were the ones “that really bothered [her] the most,” and “the two that [she] will stand by.” Def’s SOF ¶ 27; Pl.’s SOF ¶ 27; Ex. 5 to Def.’s Mot. [Dkt. # 14-5] (“Carter Dep.”) at 105:3–4, 19–20. She also stated that the two incidents were not “the only time that [Fleming] yelled at [her] or got rude with [her] or obnoxious with [her].” Carter Dep. at 105:6–8. 5 asking to telework one-to-two days per week, likely Monday and/or Friday as the accommodation.

Def.’s SOF ¶ 34; Pl.’s SOF ¶ 34.

In the request, plaintiff stated that her medical conditions included hypertension and

complex migraines, among other ailments. Request 1 at 1. The physical manifestations of her

condition, however, would arise episodically and not predictably. Def.’s SOF. ¶ 35; Pl.’s SOF

¶ 35. Indeed, in a November 23, 2015 letter, a Department of Health & Human Services (“DOH”)

doctor, Papiya Ray, wrote that “although [plaintiff’s] condition is chronic, the symptoms it causes

wax and wane. Therefore, any resultant limitations may be intermittently present. . . .” Letter

from Doctor Papiya Ray, Ex. 18 to Pl.’s Opp. [Dkt. # 18-20] (“2015 Ray Letter”) at 2.

NASA’s reasonable accommodation policy treats reassignment as “a last resort” and

clarifies that a “reassignment will only be considered if no reasonable accommodations are

effective to enable the employee to perform the essential functions of the current job[.]” Ex. 11 to

Pl.’s Opp. [Dkt. # 18-13] (“Accom. Policy”) §§ 3.4.4g, 3.4.5. Fleming ultimately determined that

6 the appropriate accommodation for plaintiff would be to continue episodic telework as needed.

Def.’s SOF ¶¶ 36–37; Pl.s SOF ¶¶ 36–37. 5

V. Plaintiff’s November 2015 Mid-Point Review

On November 26, 2015, plaintiff emailed Fleming that she had not yet received the mid-

point review that was due on November 30th. Def.’s SOF ¶ 22; Pl.’s SOF ¶ 22. Fleming held the

review on November 30th, during which she asked plaintiff to certify OIIR travel – a duty that fell

within plaintiff’s position description. Def.’s SOF ¶¶ 23–25; Pl.’s SOF ¶ 23–25.

VI. January 2016 Letter of Counseling

On January 5, 2016, Fleming issued plaintiff a counseling letter that listed at least twelve

performance errors plaintiff had made in 2015 related to a critical element of her performance

5 In her Statement of Facts, plaintiff asserts that she, “disputes that she was afforded the opportunity to take periodic telework as an accommodation since Ms. Fleming routinely denied Plaintiff’s requests to telework due to her medical conditions.” Pl.’s SOF ¶ 37. She cites to paragraph nineteen of her declaration, Ex. 1 to Pl.’s Opp. [Dkt. # 18-3] (“Carter Decl.”), which states, “[e]pisodic telework was not granted to me by Ms. Fleming between January 2016 and March 2017.” However, in her May 3, 2018 deposition, when asked if she could remember any instances when Fleming denied a request to telework, plaintiff testified that “after 2015, she approved it.” Carter Dep. at 45:17. The D.C. Circuit has repeatedly held that it, like “[v]irtually every circuit[,]” has “a form of the so-called ‘sham affidavit rule,’ which precludes a party from creating an issue of material fact by contradicting prior sworn testimony unless the ‘shifting party can offer persuasive reasons for believing the supposed correction’ is more accurate than the prior testimony.” Galvin v. Eli Lilly and Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007). “A party can also support repudiation of an earlier statement by offering newly discovered evidence.” Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991). In this case, plaintiff has failed to supply any grounds for why the Court should accept her declaration over her previously sworn deposition testimony. And, other evidence provided by plaintiff contradicts her statement in the declaration. See, e.g., Ex. 38 to Pl.’s Opp. [Dkt. # 18-40] at 3 (email from Fleming to plaintiff summarizing a tag-up meeting that stated, “You will telework for 4 hours on Fri 12/23[/2016]”); Ex. 41 to Pl.’s Opp. [Dkt. # 18-43] (“PIP Notice”) at 3 (“On July 1, 2016 . . . [plaintiff] was teleworking. . . .”). For these reasons, there is no genuine dispute as to the fact that plaintiff was granted episodic telework as needed. 7 plan. 6 Def.’s SOF ¶ 29; Pl.’s SOF ¶ 29; Ex. 3 to Decl. of DeVon Fleming (“Fleming Decl.”),

Ex. 2 to Def.’s Mot. [Dkt. # 14-2] (“Counseling Letter”) at 1–2. In the letter, Fleming also stated

“[w]e have talked about your performance on a number of occasions during our weekly tag ups

and I have seen little improvement.” Counseling Letter at 1. The letter included a set of

performance expectations. Id. at 2.

The counseling letter did not become part of plaintiff’s personnel file, and she was given a

“fully successful” performance rating for the 2015–2016 performance period by Fleming. Def.’s

SOF ¶¶ 30–31; Pl.’s SOF ¶¶ 30-31. Fleming noted in the letter, though, that “[d]uring this rating

cycle, I worked closely with Ms. Carter to assist in improving the quality of her overall work

performance. In spite of that, it has not had an impact on her performance and she is not performing

with the level of detail and understanding required for this position.” Ex. 4 to Fleming Decl. [Dkt.

# 14-2] at 7.

VII. Plaintiff’s April 2016 EEO Complaint

On December 21, 2015, plaintiff contacted an EEO counselor and received counseling.

Def.’s SOF ¶ 13; Pl.’s SOF ¶ 13; see also Ex. 1 to Decl. of Kathleen Teale (“Teale Decl.”), Ex. 3

to Def.’s Mot. [Dkt. # 14-3] (“April 2016 EEO Compl.”) at 1–2. On April 5, 2016, plaintiff filed

a formal EEO complaint, alleging discrimination and/or retaliation by Fleming and Condes and a

hostile work environment. Def.’s SOF ¶¶ 13–15; Pl.’s SOF ¶¶ 13–15. The complaint alleged the

following six acts of discrimination and retaliation:

1) Fleming added additional duties to plaintiff’s position description without explanation;

2) Fleming yelled at plaintiff on two occasions – March 29, 2015 and May 3, 2015;

6 Plaintiff does not dispute that the letter was issued, but denies that her work was deficient. Pl.’s SOF ¶ 29. 8 3) Plaintiff had to contact Fleming for her mid-point evaluation on November 30, 2015 because Fleming had not reached out to plaintiff;

4) On January 5, 2016, Fleming issued a counseling letter to plaintiff based on her poor performance;

5) Plaintiff was harassed by Condes, in his role as investigator of plaintiff’s harassment complaint, including through a January 7, 2016 email invitation from Condes asking to discuss the behavior alleged in plaintiff’s questionnaire;

6) Fleming denied plaintiff’s request for accommodation on January 5, 2016.

Def.’s SOF ¶ 14; Pl.’s SOF ¶ 14; see April 2016 EEO Compl. at 1–2.

On August 12, 2016, plaintiff submitted an amendment to the April 2016 EEO complaint,

adding that Fleming had failed to meet with her prior to issuing her June 30, 2016 Performance

Rating. 7 Def.’s SOF ¶ 38; Pl.’s SOF ¶ 38. The two met on June 30, 2016 to discuss the review,

and plaintiff emailed Fleming afterwards stating that she would “need a couple of days to review

and respond to the summary in [her] performance review and rating. . . .” Ex. 6 to Teale Decl.

[Dkt. # 14-3] at 1. On July 5, 2016, plaintiff emailed Fleming again stating, “I need to speak with

my Lawyer first, before I sign off on my performance review which will be in a few days.” Ex. 6

to Teale Decl. at 1; Def.’s SOF ¶¶ 39–41; Pl.’s SOF ¶¶ 39–41. Plaintiff never signed off on the

performance rating, which evaluated her as “fully successful.” Def.’s SOF ¶ 42; Pl.’s SOF ¶ 42.

VIII. Plaintiff’s Second Request for Accommodation

On November 7, 2016, plaintiff submitted a new request for a reasonable accommodation.

See Ex. 13 to Teale Decl. [Dkt. # 14-3] (“Request 2”); Def.’s SOF ¶ 60; Pl.’s SOF ¶ 60. In it, she

stated that “[o]ver the last several months, I have initiated both discrimination and retaliation

7 The amended EEO complaint also contains a section on the 2017 Performance Plan issued to plaintiff by Fleming in May 2016. It is unclear from the EEO complaint what plaintiff was alleging at that point. See Ex. 5 to Teale Decl. [Dkt. # 14-3] at 1. 9 claims against my management in . . . (OIIR). Consequently, I am now suffering a hostile and

toxic work environment and am now requesting to be immediately reassigned or transferred to

another office.” Request 2 at 1. As with plaintiff’s initial request, she added that “[u]ntil this

request is approved, I would like to either telework from home or be placed on paid administrative

leave.” Id.

To support her second request, plaintiff submitted medical documentation, including a

December 16, 2016 medical letter from a doctor at George Washington University. See Ex. 14 to

Teale Decl. [Dkt. # 14-3] at 2. The letter stated that plaintiff “has uncontrolled hypertension that

is exacerbated by stress. Her stressful working environment is detrimental to her health causing

her to have episodes of hypertensive emergency which may lead to exacerbated health problems

of stroke, heart attack, kidney failure, or even death.” Letter from Doctor Nicholas Dallas, Ex. 30

to Pl.’s Opp. [Dkt. # 18-32] (“Dallas Letter”). The letter also asked that NASA assist plaintiff “to

have her reassigned to a less stressful working environment.” Id.

In response, NASA informed plaintiff that her doctor was required to submit an additional

form in order for her request to be processed. Ex. 14 to Teale Decl. at 2. As of December 30,

2016, plaintiff’s doctor had not accessed the form. Id. at 1. Plaintiff ultimately faxed the form to

her doctor in early January 2017, Carter Dep. at 154:7–9, and the paperwork was submitted to

NASA sometime around January 31, 2017. Def.’s SOF ¶ 63; Pl.’s SOF ¶ 63; Carter Dep.

at 155:20-156:11. Plaintiff asserts that she was “actively engaged in obtaining the requested

medical documentation,” and that she submitted other medical documentation to NASA in

December 2016. Pl.’s SOF ¶ 63. She also adds that NASA “delayed its follow-up efforts to obtain

more detailed information, including a medical evaluation form.” Id.

10 IX. Plaintiff’s October 2016 EEO Complaint

Plaintiff filed a second EEO complaint on October 3, 2016, which reported retaliation

“[b]ased on Incident of Harassment and Hostile Work Environment dated September 22, 2016,

with DeVon Fleming.” Def.’s SOF ¶ 44; Pl.’s SOF ¶ 44; Ex. 7 to Teale Decl. [Dkt. # 14-3] at 1.

Plaintiff attached a September 22, 2016 email she sent to her attorney which described a meeting

she had with Fleming on the same day, during which Fleming reviewed edits she made to

plaintiff’s work on different assignments. See Ex. 22 to Pl.’s Opp. [Dkt. # 18-24] (“Oct. 2016

Compl.”) at 4. Plaintiff recounted “anger in DeVon Fleming [sic] voice and demeanor,” id., and

she reported that after the meeting, her “heart was racing rapidly, and [her] head started to ached

[sic].” Id. at 5. When asked about this incident in her deposition, plaintiff described Fleming as

being “a little rude to me, just – you know, because she was snappy in that meeting. She was a

little snappy in the meeting that we had that day[.]” Carter Dep. at 115:22–25. That behavior was

the basis of the October 2016 EEO Complaint. Def.’s SOF ¶ 45; Pl.’s SOF ¶ 45.

X. Plaintiff’s Receipt of a Special Rating, Denial of a WIGI, and Placement on a PIP

On November 29, 2016, plaintiff and Fleming met for plaintiff’s mid-point progress review

for the 2016-2017 performance period. Def.’s SOF ¶ 47; Pl.’s SOF ¶ 47. One day later, Fleming

signed plaintiff’s Employee Review. Def.’s SOF ¶ 49; Pl.’s SOF ¶ 49. The narrative section of

the review contained an assessment of plaintiff’s work, including that she needed improvement in

critical element 1 of her performance plan “to meet expectations[,]” along with several

recommendations for how plaintiff could accomplish that goal. See Ex. 9 to Fleming Decl. [Dkt.

# 14-2] at 8. 8

8 Plaintiff disputes that the descriptions of her performance in the review accurately describe her work. Pl.’s SOF ¶ 48. 11 As a result of the mid-point review procedures, Fleming sent an email to plaintiff on

December 13, 2016, summarizing the matters discussed during their meeting and listing

assignments plaintiff needed to complete. See Ex. 10 to Fleming Decl. [Dkt. # 14-2] at 2–3. After

plaintiff responded and noted that some of the tasks covered in Fleming’s initial email were “new

functions” for plaintiff, id. at 1, Fleming replied that “it was not [her] intent to give [plaintiff] new

functions during the midpoint[,]” and that plaintiff did not need to perform two of the three new

tasks. See id. According to Fleming, plaintiff’s remaining tasks included: instructions to complete

one ongoing task in a more structured fashion, one new item that was critical, and other tasks that

plaintiff was already performing. Id. Plaintiff contends, however, that “[d]uties that were added

to [her] workload in Ms. Fleming’s December 13, 2016 [sic] were new duties and increased the

complexity of the work performed by Plaintiff, requiring her to shoulder responsibilities that

properly should have been performed by [other employees].” Pl.’s SOF ¶ 50.

On January 31, 2017, Fleming issued a “special” unscheduled rating, explaining that

plaintiff’s work in critical element 1 failed to meet expectations and was rated “unacceptable.”

Def.’s SOF ¶ 53; Pl.’s SOF ¶ 53. In the narrative of critical element 1, Fleming stated that “Ms.

Carter fails to meet expectations in this element. Specifically, she is not managing the overall

budget activities to include tracking budget actions through to completion, her budget reports often

contain errors, and budget documents are processed with errors and revisions.” Ex. 11 to Fleming

Decl. [Dkt. # 14-2] at 7. The report then listed several examples of plaintiff’s work that had

contained errors. Id. Plaintiff contends that the rating did not accurately represent her work

performance. Pl.’s SOF ¶ 53.

Per NASA policy, if an employee’s performance “fails to meet expectations,” the employee

must be placed on a Performance Improvement Plan (“PIP”) and denied a within-grade increase

12 (“WIGI”) until the employee’s performance improves to “meeting expectations.” Def.’s SOF

¶¶ 51–52; Pl.’s SOF ¶¶ 51–52. On February 7, 2017, Fleming initiated the PIP and on February

19, 2017, denied plaintiff’s request for a WIGI. Def.’s SOF ¶¶ 53–54; Pl.’s SOF ¶¶ 53–54.

XI. Plaintiff’s Retirement

NASA’s Shared Services Center (“NSSC”) is charged with handling employee retirements.

Def.’s SOF ¶ 56; Pl.’s SOF ¶ 56. On March 9, 2016, before the special rating and the PIP arose,

NSSC emailed plaintiff, stating “[w]e understand that you plan to retire on 09/03/2016.” Ex. 11

to Teale Decl. [Dkt. # 14-3] at 1. Plaintiff responded on July 19, 2016, by asking for a “revised

retirement estimate for my retirement date of 2/3/2017 or 3/3/2017.” Id. Plaintiff went on to

explain: “I am eligible for my next pay increase in February and I will reach my 59 ½ to receive

my TSP.” Id. Plaintiff submits that the email was part of “prudent retirement planning.” Pl.’s

SOF ¶ 56.

On January 25, 2017, plaintiff communicated with NSSC again about placing her proposed

retirement dates – then March 3, 2017 or July 3, 2017 – on hold because she was unsure about the

date due to a “Pending Action still not resolved by Agency.” Def.’s SOF ¶ 57; Pl.’s SOF ¶ 57;

Ex. 12 to Teale Decl. [Dkt. # 14-3] at 1. Part of the pending action was plaintiff’s appeal of the

desk audit results she received, Def.’s SOF ¶ 58; Pl.’s SOF ¶ 58, and plaintiff claims that another

pending action was her second request for reasonable accommodation. Pl.’s SOF ¶ 58. The NSSC

responded that it would place the March 3, 2017 retirement date on hold. Def.’s SOF ¶ 59; Pl.’s

SOF ¶ 59.

13 On February 7, 2017, the day that plaintiff was issued a PIP, she submitted her retirement

papers, with retirement date of March 3, 2017. Def.’s SOF ¶ 55; Pl.’s SOF ¶ 55. 9

XII. Plaintiff’s April 2017 EEO Complaint

On April 18, 2017, approximately six weeks after plaintiff retired, she submitted a new

EEO complaint to NASA. Def.’s SOF ¶ 64; Pl.’s SOF ¶ 64; Ex. 9 to Teale Decl. [Dkt. # 14-3]

(“2017 EEO Compl.”) at 1–2. Plaintiff alleged several discriminatory actions by Fleming,

including her February 19, 2017 denial of plaintiff’s within-grade increase and her negative review

of plaintiff in the January 2017 special rating. See 2017 EEO Compl. at 1. Plaintiff also alleged

constructive discharged based on a hostile working environment due to Fleming’s alleged

retaliatory behavior against plaintiff for having engaged in a protected activity. Id. at 2.

PROCEDURAL HISTORY

Plaintiff filed the eleven-count complaint in this case on August 27, 2017, alleging

violations of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 621 et seq., as well as constructive discharge. Compl. For these alleged

wrongs, plaintiff seeks compensatory damages in excess of $300,000, attorneys’ fees, and other

relief deemed necessary by the Court. Defendant answered on November 6, 2017. Answer [Dkt.

# 3].

On March 25, 2019, defendant filed its motion for summary judgment. Def.’s Mot.; Def.’s

Mem. Plaintiff opposed the motion, Pl.’s Opp., and defendant replied. Def.’s Reply to Pl.’s Opp.

[Dkt. # 20] (Def.’s Reply).

9 Plaintiff asserts that her receipt of the PIP was not the sole motivating factor behind her submission of her retirement papers. Pl.’s SOF ¶ 55. 14 STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary

judgment, the non-moving party must “designate specific facts showing that there is a genuine

issue for trial.” Id. at 324 (internal quotation marks omitted).

The mere existence of a factual dispute is insufficient to preclude summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a

reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable

of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241

(D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw reasonable

inferences ‘in the light most favorable to the party opposing the summary judgment motion.’”

Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962) (per curiam).

ANALYSIS

I. Plaintiff’s Failure to Accommodate Claim

Plaintiff alleges that NASA violated the Rehabilitation Act of 1973 when it was “required,

but failed, to implement reasonable and effective accommodations for her disabilities.” Compl.

¶¶ 62, 64. Specifically, plaintiff claims that defendant “ignored or rejected” the two

15 accommodation requests at issue, which included requests for telework, transfer, and relocation /

reassignment. Compl. ¶ 65–67.

Defendant moves for judgment on the grounds that it is undisputed that the first

accommodation request was properly addressed by NASA when Fleming continued plaintiff on

an episodic teleworking plan. Def.’s Mem. at 10–11. It maintains that the second request was not

administratively exhausted, so is not properly before the Court due to a lack of subject matter

jurisdiction, and that it was never finally resolved by NASA because plaintiff retired before her

request could be reviewed. Def.’s Mem. at 12–14.

To establish a prima facie case for failure to accommodate, the plaintiff bears the burden

of showing “(1) that she was an individual who had a disability within the meaning of the statute;

(2) that the employer had notice of her disability; (3) that with reasonable accommodation she

could perform the essential functions of the position; and (4) that the employer refused to make

such accommodations.” Stewart v. St. Elizabeths Hosp., 593 F. Supp. 2d 111, 113 (D.D.C. 2009),

aff’d, 589 F.3d 1305, 1309 (D.C. Cir. 2010). If a plaintiff succeeds in establishing a prima facie

case, the employer must demonstrate that the requested accommodation would have imposed an

undue burden on its business; “the ultimate burden, however, remains with the plaintiff.” Faison

v. Vance-Cooks, 896 F. Supp. 2d 37, 49 (D.D.C. 2012), citing Barth v. Gelb, 2 F.3d 1180, 1185--86

(D.C. Cir. 1993) (explaining that reasonable accommodation requests should be tested through the

application of traditional burdens of proof).

The reasonableness inquiry in step three of the test, requires a determination that a

requested accommodation would enable “the employee to fulfill all essential functions of her job,”

Graffius v. Shinseki, 672 F. Supp. 2d 119, 126 (D.D.C. 2009), citing Woodruff v. Peters, 482 F.3d

521, 526 (D.C. Cir. 2007), and is “commonly a contextual and fact-specific” one. Solomon v.

16 Vilsack, 763 F.3d 1, 9 (D.C. Cir. 2014), citing Taylor v. Rice, 451 F.3d 898, 908 (D.C. Cir. 2006).

It is well recognized, however, that “‘[a]n employer is not required to provide an employee that

accommodation [s]he requests or prefers, the employer need only provide some reasonable

accommodation.’” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998), quoting Gile

v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996). Because it is uncontested that NASA

was aware of some of plaintiff’s medical conditions, see Compl. ¶ 14; Answer ¶ 14, to survive

summary judgment in this case, plaintiff must show that she requested an accommodation that

would have enabled her to carry out the essential functions of her job, and that NASA failed to

provide her with a reasonable accommodation.

A. There is no dispute of fact concerning whether episodic telework was a reasonable accommodation in response to plaintiff’s first request.

Plaintiff takes the position that in response to her first request for accommodation, NASA

failed to “engage in any interactive discussions with [her],” failed to provide her with assistance,

and that NASA “acted in bad faith regarding the interactive reasonable accommodation

process. . . .” Pl.’s Opp. at 36–37. Plaintiff further contends that she never agreed to permanent

episodic telework as a reasonable accommodation, and that NASA “callously resisted” her request

for a new assignment or transfer. Id. at 37.

Defendant submits that the agency’s decision to keep plaintiff on an episodic telework plan

was a reasonable accommodation as a matter of law because it adequately accommodated her

disability and allowed her to perform the essential functions of her job. Def.’s Mem. at 10–12.

The agency points to evidence that plaintiff had the same medical conditions for at least ten years

before she made her accommodation request, that she had previously been granted episodic

telework as an accommodation, and that due to the unpredictable nature of her condition, episodic

17 telework had been and would continue to be an effective and reasonable accommodation. Id.

at 9– 11.

The law is clear that the “process contemplated” for determining what accommodation is

appropriate is a “‘flexible give-and-take’ between employer and employee,” and “‘neither party

should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting

liability.’” Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014), quoting EEOC v. Sears, Roebuck

& Co., 417 F.3d 789, 805 (7th Cir. 2005). “‘Thus, courts should look for signs of failure to

participate in good faith or failure by one of the parties to make reasonable efforts to help the other

party determine what specific accommodations are necessary.’” Id., quoting Sears, 417 F.3d

at 805.

No such failure is present here. Plaintiff told her supervisor that she would take on the

responsibility of locating a potential new position, see November 10, 2015 Email from Devon

Fleming to Kim Carter, Ex. 7 to Fleming Decl. [Dkt. # 14-2] (“[y]ou added that you plan to reach

out to an office for a potential reassignment”), and that the agency took steps as well: the Federal

Occupational Health Service (“FOH”) was asked by the REACT team to provide its assessment of

plaintiff’s condition and of her request, which it did, see Deposition of LaShawn McDuffie, Ex. 13

to Pl.’s Opp. [Dkt. # 18-15] at 33:14–21; 36:2–3; and the REACT team held meetings to assess

plaintiff’s case, and it did so with information provided by both the plaintiff and other necessary

parties. See, e.g., Deposition of Crystal Moten, Ex. 14 to Pl.’s Opp. [Dkt. #18-16] at 43:2–12.

Plaintiff has not presented evidence to show that NASA failed to take measures to evaluate her

case.

More importantly, plaintiff has not come forward with evidence to create a dispute about

whether the accommodation was reasonable. The fact that NASA’s choice was not the

18 accommodation most desired by plaintiff does not create an issue for trial; an employer is not

required to grant plaintiff her preferred accommodation, but instead one that reasonably allows her

to fulfill the essential functions of her job. See Aka, 156 F.3d at 1305. Here, the undisputed

evidence establishes that episodic telework was a reasonable accommodation given plaintiff’s

medical conditions. For example, plaintiff’s own testimony confirms that she was previously

granted episodic telework and had success using it, see Carter Dep. at 38:22–39:6, 40:6–8, and

that the onset of her physical medical symptoms would occur unpredictably, id. at 39:15–18,

making telework opportunities available on an as-needed basis a reasonable response. Id. For

those reasons, summary judgment will be granted for defendant on plaintiff’s claim regarding her

first reasonable accommodation request.

B. The record shows that plaintiff’s second accommodation request has not been administratively exhausted.

Defendant contests plaintiff’s claim regarding her second accommodation request for two

reasons. First, he argues that plaintiff failed to exhaust administrative remedies by not raising the

alleged denial of her second reasonable accommodation request in her 2017 EEO Compl. Def.’s

Mem. at 13. He also contends that plaintiff abandoned the process of seeking a reasonable

accommodation by retiring before the request was ruled upon, so it was not denied. Id. at 14.

Under the Rehabilitation Act, when a plaintiff fails to exhaust administrative remedies, it

serves as a jurisdictional defect, and the court must dismiss the claim for lack of subject-matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Doak v. Johnson, 798 F.3d 1096,

1103–04 (D.C. Cir. 2015); Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006). Exhaustion

“serves the important purposes of giving the charged party notice of the claim and narrow[ing] the

issues for prompt adjudication and decision.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C.

Cir. 1995) (citation and internal quotation marks omitted). Because exhaustion is a jurisdictional

19 requirement, the plaintiff has the burden to plead and prove it, see Spinelli, 446 F.3d at 162, and a

plaintiff fails to do so “when the complaint she files in federal court includes a claim that was not

raised in the administrative complaint.” Reagan-Diaz v. Sessions, 246 F. Supp. 3d 325, 345

(D.D.C. 2017), quoting Latson v. Holder, 82 F. Supp. 3d 377, 384 (D.D.C. 2015) (internal

quotation marks omitted).

Plaintiff’s last EEO complaint, filed on April 18, 2017, did not mention the second

accommodation request. See 2017 EEO Compl. Indeed, plaintiff concedes that “[a]t the time she

filed her April 2017 EEO Complaint, NASA had not yet issued a determination or disposition

regarding Request 2. So, as of that date, there was no ‘adverse action’ that could support an EEO

complaint.” Pl.’s Opp. at 38 n.35. Instead, plaintiff argues that because the EEO Complaint based

on her first accommodation request was still outstanding at the time she filed her second EEO

complaint, and the second complaint alleged that she was being retaliated against for filing the

first EEO complaint, the second request was somehow implicated. Id. at 38.

This does not meet the test for exhaustion. As the D.C. Circuit has made clear, “for a

charge to be regarded as ‘reasonably related’ to a filed charge . . . it must [a]t a minimum . . . arise

from the administrative investigation that can reasonably be expected to follow the charge of

discrimination,” as “[t]his connection is necessary to give the agency ‘an opportunity to resolve

[the] claim administratively before [the employee] file[s] her complaint in district court.’” Payne

v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010), quoting Wiley v. Glassman, 511 F.3d 151, 160

(D.C. Cir. 2007). Here, plaintiff admits that she did not learn of the disposition of her second

accommodation request until discovery began in this litigation, which was after she retired from

the agency. Pl.’s Opp. at 38 n.35. And, the second request was not a subject of the April 2017

EEO Complaint. There is no basis to conclude that the agency would have reasonably investigated

20 plaintiff’s second accommodation request as part of her April 2017 EEO Complaint. Since

plaintiff failed to exhaust administrative remedies with respect to the second accommodation

request, the Court lacks jurisdiction to hear that portion of Count I based on the second request

and judgment will be entered in favor of defendant on that as well. 10

II. Plaintiff’s unlawful retaliation and discrimination claims

Plaintiff brings a host of claims against defendant based on alleged discrimination and

retaliation. Counts II, VI, and IX of the complaint assert claims of unlawful retaliation under the

Rehabilitation Act, Title VII, and the ADEA respectively. Counts IV, V, and VIII allege various

forms of discrimination under the same statutes. Plaintiff bases these claims on the following

alleged adverse actions: 1) wrongful denials of both of her reasonable accommodation requests;

2) Fleming’s imposition of new performance standards; 3) Fleming’s counseling letter dated

January 5, 2016; 4) the denial of the WIGI; 5) the January 31, 2017 unsuccessful performance

rating; and 6) plaintiff’s placement on a PIP. Compl. ¶¶ 77, 93, 101, 109, 125, 133. Plaintiff also

adds that exposure to a hostile work environment based on plaintiff’s race/color, disability, and

age were essential to the retaliation and discrimination she faced. Id.

The Court will analyze plaintiff’s discrimination and retaliation claims separately, but a

few common, undisputed facts are applicable to both analyses:

• Fleming and plaintiff are both African American women. Def.’s SOF ¶ 3; Pl.’s SOF ¶ 3.

• Plaintiff had a known disability that manifested in symptoms episodically. Def.’s SOF ¶ 35; Pl.’s SOF ¶ 35.

• Plaintiff was over the age of 40 at all times relevant to this matter. See Def.’s Mem. at 16 n.5; Compl. ¶ 3.

10 Because the Court will grant summary judgment based on defendant’s first argument against plaintiff’s claim, it does not need to examine his second contention. 21 • A desk audit performed at plaintiff’s requested resulted in a determination that she was performing duties in line with a GS-9 grade level, and not at GS-12 grade level. Def.’s SOF ¶¶ 6, 8; Pl.’s SOF ¶¶ 6, 8. 11

• As a result of the desk audit, Fleming had the options of either downgrading plaintiff to a GS-9 level or altering her workload to be consistent with the GS-12 position description. Def.’s SOF ¶ 9; Pl.’s SOF ¶ 9.

• Fleming updated plaintiff’s position description, which included “the same major duties as her prior position description, but sought to add additional clarity as to the scope and substance of those duties.” Fleming Decl. ¶ 9.

A. Plaintiff has failed to come forward with evidence to show that the explanations for NASA’s actions are pretextual.

Under the Rehabilitation Act and Title VII, the federal government may not discriminate

against an employee on the basis of race, color, religion, sex, national origin, or disability.

42 U.S.C. § 2000e–16(a); 29 U.S.C. § 701 et seq. Similarly, the ADEA mandates that “[a]ll

personnel actions affecting [federal] employees . . . who are at least 40 years of age . . . shall be

made free from any discrimination based on age.” 29 U.S.C. § 633a(a). “[T]he two essential

elements of a discrimination claim [under the three statutes] are that (i) the plaintiff suffered an

adverse employment action (ii) because of the plaintiff’s race, color, religion, sex, national origin,

age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (collecting

cases). “A plaintiff must prove both elements to sustain a discrimination claim.” Id. The Supreme

Court has cautioned that federal employee discrimination statutes should not be used as “general

civility code[s]” for unhappy employees, Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998), and courts should not act as “‘super-personnel departments that

11 Plaintiff’s contentions regarding the accuracy of the audit results, as discussed above, are not relevant to this restatement of facts. 22 reexamine[] an entity’s business decisions.’” Holcomb v. Powell, 433 F.3d 889, 895 (D.C.

Cir. 2006), quoting Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999).

In cases that do not have direct evidence of discriminatory intent, as is the case here, the

arguments are assessed under a three-part burden shifting framework. First, the plaintiff must

establish a prima facie case of discrimination, as articulated above. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973); Holcomb, 433 F.3d at 895. Once a prima facie case is

established, “[t]he burden [] must shift to the employer to articulate some legitimate,

nondiscriminatory reason” for the adverse action. McDonnell Douglas, 411 U.S. at 802. If such

a reason is provided, the burden shifts back to the plaintiff to prove that the offered reason is pretext

for discrimination. McDonnell Douglas, 411 U.S. at 804; Holcomb, 433 F.3d at 901.

But “where an employee has suffered an adverse employment action and an employer has

asserted a legitimate, non-discriminatory reason for the decision, the district court need not – and

should not – decide whether the plaintiff actually made out a prima facie case under McDonnell

Douglas.” Brady v. Office of Sgt. at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in

original). Instead, “the district court must resolve one central question: [h]as the employee

produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-

discriminatory reason was not the actual reason and that the employer intentionally discriminated

against the employee on the basis of race, color, religion, sex, [age,] or national origin?” Id.;

Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (“[T]o survive summary judgment the

plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse

employment decision was made for a discriminatory reason.”).

Defendant moves for summary judgment on plaintiff’s discrimination claims under several

theories. It argues that: 1) plaintiff failed to exhaust her administrative remedies for some claims,

23 so they cannot be reviewed by this Court; 2) plaintiff has failed to present any evidence of improper

motive; 3) several of the challenged actions do not qualify as adverse actions for purposes of

discrimination claims; and 4) NASA has asserted legitimate, non-discriminatory reasons for its

actions that have not been shown to be pretext. See Def.’s Mem. at 15–25. The Court finds that

many of the challenged events are not actionable, and that plaintiff has failed to adduce evidence

to create a genuine issue as to whether NASA’s legitimate explanations for the actions that are

adverse are merely a pretext for discrimination.

1. Many of the claims fail for lack of an adverse action.

Under Brady, the Court ordinarily does not need to determine whether plaintiff has

established a prima facie case of discrimination “when – as here – defendant contests the existence

of an adverse action, the court may consider that issue first.” Francis v. Perez,

970 F. Supp. 2d 48, 62 (D.D.C. 2013), citing Baloch, 550 F.3d at 1196–97 (reviewing challenged

adverse employment actions first). Plaintiff lists several negative employment events that she

faced while employed at NASA, but not all actions by an employer against an employee are

properly considered adverse employment actions for purposes of a discrimination claim, see

Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002), and “not everything that makes an

employee unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C.

Cir. 2001). A plaintiff must show that she faced “adverse consequences affecting the terms,

conditions, or privileges of employment or future employment opportunities such that a reasonable

trier of fact could find objectively tangible harm.” Forkkio, 306 F.3d at 1131. Tangible harms

include “a significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a significant

change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

24 Plaintiff identifies the denial of a reasonable accommodation as an adverse action, but the

Court has already found as a matter of law that she was not denied a reasonable accommodation

in response to her first request, and the second was never adjudicated. The handling of the requests

did not affect the terms and conditions of plaintiff’s employment and it is not properly considered

an adverse event for purposes of plaintiff’s discrimination claims.

Second, the refinement of plaintiff’s duties or the assignment of new ones in the wake of

the desk audit cannot constitute an adverse action. “Changes in assignments or work-related duties

do not ordinarily constitute adverse employment actions if ‘unaccompanied by a decrease in salary

or work hour changes.’” Lester v. Natsios, 290 F. Supp. 2d 11, 28 (D.D.C. 2003), quoting Mungin

v. Katten Muchin & Zavis, 116 F.3d 1549, 1556–57 (D.C. Cir. 1997). In this case, changes in

plaintiff’s work load were implemented to prevent plaintiff’s pay grade from being lowered,

Fleming Decl. ¶ 9, and there is no evidence of any change in her hours. Therefore, even if plaintiff

was dissatisfied with the changes, they are not the type of negative employment events that qualify

as adverse employment actions.

Third, plaintiff alleges that she was discriminated against by being “counsel[ed] for non-

existent performance problems[.]” See Compl. ¶ 93. Assuming plaintiff is referring to the January

2016 letter of counseling issued by Fleming, see Counseling Letter, such letters are rarely

considered adverse employment actions, particularly where they do not result in any financial

harms. See Baloch, 550 F.3d at 1199 (counseling letter was not an adverse action even under the

more permissive standard for an adverse action in a retaliation claim); see also Hyson v. Architect

of the Capitol, 802 F. Supp. 2d 84, 102 (D.D.C. 2011) (commenting that letters of counseling “will

rarely constitute [] adverse action until Title VII”). In this case, the counseling letter listed

deficiencies in plaintiff’s performance and ways she could improve her work. Counseling Letter

25 at 1–2. More importantly, the letter was never added to plaintiff’s permanent personnel file and

did not trigger any financial repercussions. Fleming Decl. ¶ 11. It, therefore, does not qualify as

an adverse employment action.

The final alleged adverse actions raised by plaintiff – the “unsuccessful” special rating, the

denial of plaintiff’s within-grade increase, and imposition of a PIP – must be considered together.

On January 31, 2017, one year after issuing the letter of counseling, Fleming issued plaintiff an

unscheduled special rating, which found plaintiff’s performance to be “unacceptable.” See Ex. 11

to Fleming Decl. Thereafter, in accordance with NASA policy, Fleming denied plaintiff her

anticipated wage increase and placed her on a PIP. Because the special rating led to the denial of

plaintiff’s WIGI, which is a financial harm, they are both properly considered to be “adverse

consequences affecting the terms, conditions, or privileges of employment. . . .” Forkkio, 306

F.3d at 1131.

On the other hand, placement on a PIP is generally not considered an adverse action in a

discrimination claim unless it triggered consequences such as a demotion or loss of pay. See

Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (placement on a PIP did not constitute an

adverse employment action because there was no evidence suggesting that the PIP affected

plaintiff’s salary or grade). In this case, placing plaintiff on a PIP was required under NASA policy

once Fleming issued the unacceptable rating. See Ex. 12 to Fleming Decl. [Dkt. # 14-2] at 3

(Section 4.8.1.a). Denying plaintiff’s WIGI was also required. Id. at 3 (Section 4.8.4). Because

issuance of the PIP was mandatory, and it was the rating and not the PIP that delayed plaintiff’s

wage increase, the PIP itself did not itself result in any tangible consequences, and it is not an

adverse action.

26 2. NASA has provided non-discriminatory reasons.

Having determined which actions qualify as adverse employment actions, the Court next

turns to assessing whether the non-discriminatory reasons proffered by defendant for the adverse

actions are legitimate, or, as plaintiff argues, pretext for discrimination.

A plaintiff can show that her employer’s proffered explanation is pretext for discrimination

by providing “evidence sufficient for a jury to find . . . ‘that the defendant’s explanation is

unworthy of credence’ and that a jury could ‘reasonably infer from the falsity of the explanation

that the employer is dissembling to cover up a discriminatory purpose.’” Primas v. District of

Columbia, 719 F.3d 693, 697 (D.C. Cir. 2013), quoting Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 147 (2000). A plaintiff may point to “changes and inconsistencies in the stated

reasons for the adverse action[,]” Brady, 520 F.3d at 495 n.3, or “might also establish pretext with

evidence that a factual determination underlying an adverse employment action is egregiously

wrong[.]” Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015).

Here, plaintiff argues that she must have been the victim of discrimination because she was

subjected to the adverse actions while two coworkers who were younger and did not have

disabilities were not. She claims that the record “teems with evidence of the pretextual nature of

[d]efendant’s explanations for the adverse actions taken against plaintiff[.]” Pl.’s Opp. at 44.

But defendant has come forward with evidence to show that the agency’s actions were

based on legitimate, non-discriminatory reasons:

• Plaintiff’s 2015 desk audit, which was not conducted by Fleming, revealed plaintiff was not working at a high enough level. See Ex. 1 to Fleming Decl.

• Mr. Condes expressed concern about plaintiff’s failure to adequately perform her duties in March 2015. See Ex. 18 to Teale Decl.

27 • Plaintiff was issued a counseling letter in January 2016 that listed her specific deficiencies in in critical element 1 and told her what needed to be improved. See Counseling Letter.

• Plaintiff’s 2015-2016 performance review contained a note that she was “not performing with the level of detail and understanding required for this position[,]” and plaintiff’s November 2016 mid-point review also mentioned her underperformance in critical element 1. See Ex. 4 to Fleming Decl. at 7.

• The special rating assessed plaintiff’s performance in critical element 1 as “Fails to Meet Expectations.” Ex. 11 to Fleming Decl. at 2.

• The PIP noted plaintiff’s shortcomings in critical element 1. See Ex. 14 to Fleming Decl. at 1.

Each of these assertions was accompanied by a detailed explanation, and the expected

improvement was clearly described.

Plaintiff has failed to adduce any evidence beyond her conclusory assertions that any of

these explanations was simply a pretext for discrimination. First, while not dispositive, it is worth

noting that plaintiff is the same race as Fleming, who issued the special rating and withheld

plaintiff’s wage increase. Def.’s SOF ¶ 3; Pl.’s SOF ¶ 3. As some other courts in this district have

suggested, when a person accused of discriminating against another based on race is of the same

race, it may make the claim “suspect.” Hardy v. Marriott Corp., 670 F. Supp. 385, 392

(D.D.C. 1987); accord Watson v. D.C. Water & Sewer Authority, No. CV 16-2033 (CKK), 2019

WL 6000201, at *13 (D.D.C. Nov. 15, 2018).

Second, the record shows that Patricia Shephard, one of the co-workers plaintiff compared

herself to, had different responsibilities than plaintiff but is the same race and approximately the

same age as plaintiff, see Ex. 2 to Def.’s Reply, Second Decl. of Devon Fleming [Dkt. # 20-2]

¶¶ 3, 5; Supplemental Decl. of Kathleen Teale [Dkt. # 20-1] ¶ 6; Pl.’s Opp. ¶ 55, and the other

NASA employee, who is also an African American woman, replaced plaintiff after she retired,

28 which defendant contends cannot be used as evidence of pretext. Def.’s Reply at 19-20 n.15; see

also Fleming Dep. at 16, 23–24; Carter Decl. ¶ 61. Plaintiff’s conclusory arguments about

additional evidence of racial discrimination are, accordingly, contradicted by the record and

insufficient to rebut defendant’s explanation for the adverse actions.

In her opposition, plaintiff already repeats the litany of employment events she was

unhappy with, however, plaintiff has pointed to no facts to create a genuine dispute on the question

of defendant’s motivation. Accordingly, summary judgment will be granted for defendant on

Counts IV, V, and VIII.

B. Summary judgment will be granted for defendant on plaintiff’s retaliation claims because plaintiff has not come forward with facts to show that defendant’s stated legitimate reasons were pretextual.

1. Legal Framework

The Rehabilitation Act, Title VII, and the ADEA make it illegal for an employer to retaliate

against an employee for engaging in a protected activity, including opposing unlawful employment

practices and bringing discrimination charges under any of the three statutes. See Gomez-Perez v.

Potter, 553 U.S. 474, 479 (2008) (the ADEA); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015)

(Title VII); Baloch, 550 F.3d at 1198 (Rehabilitation Act). To prove retaliation in the absence of

direct evidence of retaliation, a plaintiff must establish “(1) that [s]he engaged in statutorily

protected activity; (2) that [s]he suffered a materially adverse action by [her] employer,” Jones v.

Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009); and 3) that her “protected activity was a but-for

cause of the alleged adverse action by the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570

U.S. 338, 362 (2013); see also Baloch, 550 F.3d at 1198. As with discrimination claims, once a

defendant asserts legitimate, non-retaliatory reasons for its conduct, “the district court should []

29 proceed[] to the ultimate issue of retaliation vel non instead of evaluating whether [plaintiff] made

out a prima facie case.” Jones, 557 F.3d at 678.

2. Application

Plaintiff contends that defendant retaliated against her in violation of the Rehabilitation

Act (Count II), Title VII (Count VI), and the ADEA (Count IX). She identifies the same adverse

actions listed in the discrimination claims as constituting retaliatory acts, along with Fleming’s

“screaming” at plaintiff in March and May 2015, Fleming’s failing to grant plaintiff’s requests to

telework in 2016, and NASA’s “ignoring Plaintiff’s physician’s dire warning of the life-

threatening effects of the abusive OIIR work environment on Plaintiff’s health[.]” Pl.’s Opp.

at 46 n.41. Plaintiff argues that these actions were in response to the multiple protected activities

she engaged in over the course of several years, and their retaliatory nature is supported by the

temporal proximity between her participation in those activities and the challenged conduct. See,

e.g., Pl.’s Opp. at 21. She submits that a reasonable person working her position would have taken

actions as the message: “engage in protected activities and you will be met with the . . . retaliatory

measures, that place you in a ‘life or death’ situation.” Id. at 47. She asserts that “[a] more chilling

message cannot be envisioned.” Id.

Defendant notes that the alleged screaming incidents cannot be retaliatory events because

they pre-dated plaintiff’s participation in protected activities. Def.’s Mem. at 22–25; Def.’s Reply

at 19. So those will be excluded.

As for the others, the test for whether an employment event is an adverse action for

purposes of a retaliation claim is less stringent than the test that applies in a discrimination claim.

As plaintiff’s opposition recognizes, an “employer’s actions must be harmful to the point that they

could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

30 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006). In this case, however, the

Court need not determine whether the alleged adverse events qualify, because summary judgment

will be granted based on plaintiff’s failure to come forward with evidence to create a genuine

dispute with respect to the legitimate, non-retaliatory reasons identified by the defendant.

Defendant has proffered a legitimate, non-retaliatory reason for the challenged actions. He

contends that each of the complained-of events flowed directly from the 2015 desk audit. After

Fleming adjusted plaintiff’s job duties so that she could maintain her grade and pay levels, plaintiff

was told repeatedly that she was not performing satisfactorily. See Ex. 18 to Teale Decl.;

Counseling Letter. There is evidence to show that the “unacceptable” special rating that affected

the wage increase came after those problems did not improve. See Ex. 11 to Fleming Decl. at 7.

Once defendant came forward with this evidence, it fell to plaintiff to point to facts that

would create a question for the jury concerning defendant’s true intent, and whether retaliation

was the but-for cause of plaintiff’s counseling and negative ratings. But plaintiff’s response is

highly conclusory, and this is the point in the litigation when she is supposed to put meat on the

bones of her complaint. Plaintiff objects to defendant’s contentions, Pl.’s Opp. at 50, and she says

that defendant’s proffered explanations fail for the same reasons set out in connection with the

discrimination claims.

But the Court has already determined that defendant’s legitimate reasons for the adverse

actions in plaintiff’s discrimination claims are sufficient to overcome plaintiff’s allegations; and

the same is true here, even with the expanded list of adverse actions. Plaintiff points to no facts to

lead one to doubt that following the 2015 desk audit, she continuously failed to meet performance

expectations for her position description, was put on notice of her shortcomings and of ways she

could improve, and that she still was unable to meet expectations.

31 Since plaintiff has not pointed to any genuine dispute with respect to those facts, and she

does not identify the facts that would lead a jury to conclude those reasons were pretextual,

judgment will be granted in favor of defendant.

III. Plaintiff’s hostile work environment claims

In Counts III, VII, and X, plaintiff asserts hostile work environment claims under the

Rehabilitation Act, Title VII, and the ADEA. Specifically, plaintiff alleges that “beginning in

October 2015, Ms. Fleming and Mr. Condes began and continued unabated a pattern of unwelcome

harassment, intimidation and ridicule directed at Plaintiff,” because she “opposed unlawful

employment practices” under the different statutes, and “for participating in protected EEO

activities.” Compl. ¶¶ 85, 117, 141.

“Hostile [work] environment claims are different in kind from discrete acts. Their very

nature involves repeated conduct[,]” and may extend over days or years; therefore, “a single act of

harassment may not be actionable on its own.” Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 115 (2002). A plaintiff supports a claim for a hostile work environment when she

adduces evidence that shows that “the workplace is permeated with [retaliatory] intimidation,

ridicule, and insult” that is “sufficiently severe or pervasive [as] to alter the conditions of the

victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., 510

U.S. 17, 21 (1993) (citation and internal quotation marks omitted). To “determin[e] whether an

actionable hostile work environment claim exists, [courts] look to ‘all the circumstances,’

including ‘the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.’” Morgan, 536 U.S. at 116, quoting Harris, 510 U.S.

at 23. That analysis takes into consideration whether the behavior creates “an objectively hostile

32 or abusive work environment – an environment that a reasonable person would find hostile or

abusive” and whether the plaintiff “subjectively perceive[s] the environment to be abusive[.]”

Harris, 510 U.S. at 21.

In the complaint, plaintiff failed to specify which events constitute her hostile work

environment claim. See generally Compl. ¶¶ 84–90. In her opposition to the motion for summary

judgment, she clarifies that “[b]eginning in 2015, and continuing unabated into early 2017,

Plaintiff was subjected to unrelenting abuse and harassment from Fleming[,]” which was “based

on Plaintiff’s race, gender, disability and her having engaged in protected activities.” Pl.’s Opp.

at 53–54. Plaintiff argues that the harassment included:

(1) screaming; (2) abusing NASA’s performance management standards and expectations by having myriad duties foisted on [plaintiff] that were not achievable and were unduly harsh; (3) denial of requests to telework; (4) requiring [plaintiff] to be “investigated” by one of the harassers named in her anti-harassment complaint; (5) being issued a Letter of Counseling; (6) denial of [plaintiff’s] requests for reasonable accommodation; (7) being issued a WIGI denial in January 2017; and (8) being issued a PIP in February 2017.

Id. at 54 n.51. She adds that those events and the “level of animosity directed at Plaintiff”

increased after her participation in protected activities and became so extreme that they put her life

at risk and affected her ability to do her job. 12 Id. at 54.

Defendant offers several reasons why plaintiff’s claims fail as a matter of law. For one,

defendant argues that plaintiff’s claims are based on “an ‘array of unrelated’ acts separated by

significant gaps in time.” Def.’s Mem. at 29. They, accordingly, are not sufficient to prove a

hostile work environment. Id. Defendant also notes that two of the events – the yelling incidents

that took place in March and May 2015 – “occurred more than 45 days from [plaintiff’s] December

12 Plaintiff adds that the hostility also affected her economically by forcing her to retire involuntarily. 33 2015 EEO contact[,]” and therefore, are not administratively exhausted and “cannot form the basis

for a hostile work environment claim.” Id. Finally, he contends that plaintiff “cannot establish

that the conduct identified could possibly be deemed ‘hostile’ or motivated by any discriminatory

or retaliatory animus.” Id. at 28. For those reasons, he submits that the conduct “fails to rise to

the requisite level to support a hostile work environment claim as a matter of law.” Id. For all

those reasons, defendant argues summary judgment should be granted in his favor on plaintiff’s

hostile work environment claims.

There is no question that plaintiff and Fleming had a difficult relationship that lasted for

several years. It is also clear that plaintiff suffered from health issues that were exacerbated by

stressful situations. And neither party disputes that as a result of the conduct alleged in the

complaint and opposition, plaintiff subjectively felt that her work environment was abusive. See

Def.’s Reply at 25. However, that is only half of plaintiff’s battle. She must still prove that her

work environment was so permeated with discriminatory or retaliatory intimidation, ridicule, and

insult that a reasonable employee in her position would find it abusive.

As a threshold matter, contrary to defendant’s contention, the yelling incidents in March

and May 2015 may be included in the list of harassing events. Administrative exhaustion applies

equally to hostile work environment claims as it does to discrete discrimination claims. See Park,

71 F.3d at 907. As part of that process, a plaintiff is required to contact an EEO counselor “within

45 days of the date of the matter alleged . . . .” 29 C.F.R. § 1614.105(a)(1); see also Morgan, 536

U.S. at 122. However, unlike in a discrimination claim, in the hostile work environment context,

“[i]t does not matter . . . that some of the component acts of the hostile work environment fall

outside the statutory time period. Provided that an act contributing to the claim occurs within the

34 filing period, the entire time period of the hostile environment may be considered by a court . . . .”

Morgan, 536 U.S. at 117.

Here, the parties agree that plaintiff first contacted an EEO counselor on December 21,

2015, more than seven months after the yelling incidents and well outside the statutory time period.

See Pl.’s Opp. at 19; Def.’s SOF ¶ 13; see also April 2016 EEO Compl. at 1. She filed an EEO

complaint on April 5, 2016, see April 2016 EEO Compl., and it included timely allegations in

addition to the yelling incidents. The yelling incidents, therefore, may be considered as allegedly

hostile acts.

The incidents the Court must consider, then, are the yelling, the assignment of additional

job duties, the supposed denial of the request to telework, the fact that it was Condes who

investigated the harassment claim, and plaintiff’s receipt of a negative special rating, which led to

the denial of a wage increase, and placement on a PIP.

The Court finds that for a number of reasons, the evidence regarding those events does not

support plaintiff’s hostile work environment claim. With respect to discrimination, plaintiff points

to no direct or circumstantial evidence of discriminatory bias based on her race, her age, or her

disability. And other than the fact that her negative evaluations piled up at the same time that her

EEO action was pending, she does not point to any evidence of retaliatory motive.

Also, there is no evidence that any of the activities was motivated by discriminatory or

retaliatory animus. As discussed in the Court’s analysis of plaintiff’s discrete discrimination and

retaliation claims, plaintiff was afforded episodic telework as a reasonable accommodation for her

disability, Condes was identified as the proper person to investigate plaintiff’s harassment claims

pursuant to NASA’s internal policies, and plaintiff has not shown that it was anything other than

her own failures to adequately carry out her job responsibilities that led to her receipt of the

35 negative special rating, which in turn automatically triggered the denial of her WIGI and placement

on a PIP.

Furthermore, these distinct events are not sufficiently severe or pervasive to constitute a

hostile work environment. They are the ordinary tribulations of the workplace, and they took place

over two years, in accordance with NASA’s policies. These facts counsel against a finding that

the conduct was unduly harsh or persistent enough to create a hostile work environment.

Therefore, while the Court is sympathetic to plaintiff’s frustration with her working

environment and her ongoing medical troubles, it, nonetheless, finds that based on the evidence

presented by the parties, a reasonable jury could not find that plaintiff was exposed to a hostile

work environment. The Court will, accordingly, grant summary judgment for defendant on Counts

III, VII, and X.

IV. Plaintiff’s constructive discharge claim

Plaintiff’s final claim is for constructive discharge, although she fails to identify which

statute(s) forms the basis of the allegation. Plaintiff alleges that “Ms. Fleming’s abusive and

endemic discriminatory and retaliatory conduct and harassment . . . directly and catastrophically

adversely affected Plaintiff’s health and her ability to perform her job.” Compl. ¶ 148. She argues

that she

did not voluntarily retire and was constructively discharged since (1) [d]efendant failed to participate in good faith in the reasonable accommodation process; (2) [d]efendant engaged in unlawful discrimination and retaliation in violation of the VRA, Title VII and the ADEA; (3) there existed conditions that would have prompted a reasonable person to resign; and (4) there are aggravating factors that warrant a constructive discharge finding, including [d]efendant’s failure to protect [p]laintiff from direct threats to her health by failing to consider reassignment or transfer.

36 Pl.’s Opp. at 52. To support her claim, plaintiff directs the Court to a December 16, 2016 letter

from Doctor Dallas, her physician at George Washington University Hospital, which plaintiff

argues shows that “the OIIR work environment was life threatening.” Pl.’s Opp. at 51. 13 She

maintains that her “working conditions had become so intolerable that a reasonable employee in

her position would have been compelled to resign.” Id.

Defendant moves for summary judgment on two grounds. He argues that plaintiff’s claim

fails because the record does not support her hostile work environment claim, which he contends

is a requirement for pleading constructive discharge. Def.’s Mem. at 31. He also insists that the

evidence shows that plaintiff was not exposed to conditions that were so intolerable that she had

no choice but to retire, but instead that she had been planning for her retirement and, in fact,

delayed her retirement date, even while the allegedly intolerable events continued. Def.’s Mem.

at 30–31.

“[R]esignations or retirements are presumed to be voluntary,” Veitch v. England, 471

F.3d 124, 134 (D.C. Cir. 2006) (Rogers, J., concurring) (citation and internal quotation marks

omitted), but in certain cases, “the doctrine of constructive discharge enables an employee to

overcome the presumption of voluntariness and demonstrate she suffered an adverse employment

action by showing the resignation or retirement was, in fact, not voluntary.” Aliotta v. Bair,

614 F.3d 556, 566 (D.C. Cir. 2010). The doctrine is available to a plaintiff whose claim meets an

objective test: “whether a reasonable person in the employee’s position would have felt compelled

to resign under the circumstances.” Id.

13 The letter stated that plaintiff’s “stressful working environment is detrimental to her health causing her to have episodes of hypertensive emergency which may lead to exacerbated health problems of stroke, heart attack, kidney failure, or even death.” Dallas Letter. It also asked NASA to try to reassign plaintiff. Id. 37 The Court agrees with defendant that because the record does not support plaintiff’s hostile

work environment claim – or any of plaintiff’s claims – her constructive discharge claim fails as

well. See Sewell v. Hugler, No. 08-5079, 2009 WL 585660, at *1 (D.C. Cir. Feb. 25, 2009) (“To

establish constructive discharge claims under Title VII, a plaintiff must show not only that her

working environment was hostile, but also that it became so intolerable that her resignation

qualified as a fitting response.”) (citation and internal quotation marks omitted); accord Peters v.

District of Columbia, 873 F. Supp. 2d 158, 204 (D.D.C. 2012); see also McKeithan v. Boarman,

803 F. Supp. 2d 63, 70 n.5 (D.D.C. 2011) (“[B]ecause [plaintiff] has failed to show that his working

environment was hostile, he cannot establish that he was constructively discharged.”).

Moreover, while plaintiff maintains that NASA’s failure to participate in good faith in the

reasonable accommodation process is an aspect of what made the environment so intolerable that

she had to resign, the record shows that she retired in the midst of NASA’s consideration of her

second accommodation request – the one supported by the doctor’s letter notifying the agency of

the deterioration of her health. And since she retired two weeks after she finally submitted the

necessary paperwork, and the agency had not yet responded, and since her retirement had long

since been in the works, one cannot find that it was necessitated by the agency’s failure to respond

to her health concerns. Def.’s SOF ¶ 63; Pl.’s SOF ¶ 63; Carter Dep. at 155:20–156:11.

Based on these facts, a reasonable jury could not find that plaintiff was constructively

discharged from NASA, and the Court will grant summary judgment for defendant on Count XI.

CONCLUSION

For the reasons stated above, the Court will grant defendant’s motion for summary

judgment. A separate order will issue.

38 AMY BERMAN JACKSON United States District Judge

DATE: March 31, 2020