UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DYTAUN MONTGOMERY, : : Plaintiff, : : Civil Action No.: 22-1715 (RC) v. : : Re Document No.: 38 DOUGLAS A. COLLINS, : Secretary of Veterans Affairs, : : Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Dytaun J. Montgomery brings this employment discrimination action under the
Rehabilitation Act, 29 U.S.C. §§ 791 et seq., against Douglas A. Collins in his official capacity
as Secretary of Veterans Affairs. 1 In March 2024, the Court denied Defendant’s Federal Rule of
Civil Procedure 12(b)(6) motion to dismiss Ms. Montgomery’s discrimination claims alleging
disparate treatment and a hostile work environment based on her hearing impairment. The
parties have completed discovery, and Defendant now moves for summary judgment under
Rule 56. For the reasons set forth below, the Court grants Defendant’s motion for summary
judgment.
1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Collins has been substituted for his predecessor. II. BACKGROUND
Ms. Montgomery has hearing loss in her left ear. Def.’s Statement of Material Facts
(“Def.’s Facts”) ¶ 2, ECF No. 38-23; Pl.’s Resp. to Def.’s Statement of Material Facts (“Pl.’s
Facts”) ¶ 2, ECF No. 41-1; Sworn Decl. of Dytaun Montgomery (“Pl.’s Decl.”) ¶ 2, ECF No. 41-
2. 2 Her condition requires her to adjust her head or position herself to hear conversations and
has caused her to experience vertigo. Pl.’s Decl. ¶ 2. In December 2015, the Washington D.C.
Veterans Affairs Medical Center hired Ms. Montgomery under Schedule A 3 as a General
Schedule level 6 (“GS-6”) human resources assistant. Def.’s Facts ¶ 1. Her first-line supervisor
was Cheryl Ann Williams, who has a disability. Id. ¶¶ 9–10. In December 2016, the
Department of Veterans Affairs (the “Department” or “VA”) promoted Ms. Montgomery to a
GS-7 human resources assistant. Id. ¶ 14. And in July 2017, the Department appointed her to a
GS-7 human resources specialist position. Id. ¶ 15. But there were procedural errors in that
appointment that caused some later administrative challenges. See id. ¶¶ 20–21. 4
Near the end of fiscal year 2017, Ms. Montgomery’s supervisor left the Department. Id.
¶ 59. Ms. Montgomery received her performance appraisal for 2017 on July 31, 2018, months
after the time she should have received it. See id. ¶ 60; Pl.’s Facts ¶ 60. She received a “fully
successful” rating, but did not receive a cash award. Def.’s Facts ¶¶ 61, 63; Pl.’s Facts ¶¶ 61, 63;
2 In ruling on this motion for summary judgment, the Court assumes the truth of all uncontested facts identified in Defendant’s “Statement of Undisputed Material Facts.” See Local Civ. R. 7(h)(1). 3 Schedule A allows a federal agency to non-competitively “appoint, on a permanent, time-limited, or temporary basis, a person with an intellectual disability, a severe physical disability, or a psychiatric disability.” 5 C.F.R. § 213.3102(u)(1). 4 Ms. Montgomery does not contest that there were procedural errors in her appointment, Pl.’s Opp’n at 4, ECF No. 41; Pl.’s Resp. to Def.’s Reqs. for Admis. (“RFA”) No. 6, ECF No. 38-7, but does dispute whether “a regularization process” was necessary, see Pl.’s Facts ¶¶ 20–21; Pl.’s Decl. ¶ 12.
2 RFA No. 3. The appraisal she received contained certain inaccuracies, including her GS level
and her former last name from before her marriage, so she refused to sign it. Pl.’s Decl. ¶ 26;
Pl.’s Dep. 98:5–11, ECF No. 38-2.
To explain why Ms. Montgomery did not receive a cash award for fiscal year 2017, the
Department has submitted a December 9, 2016 message from the Department Secretary
explaining that total awards were cut about 30% that year due to spending caps set in the
Comprehensive Addiction & Recovery Act of 2016. Def.’s Facts ¶ 64 (citing Ex. 19, ECF
No. 38-19). 5
When asked at her deposition whether she received a late and inaccurate appraisal
because of her disability, Ms. Montgomery responded, “I never contended that had anything to
do with my disability.” Pl.’s Dep. at 100:16–20. In her declaration in opposition to summary
judgment, however, she states that “when viewed in the broader context of discriminatory
conduct, the overall treatment was rooted in animus toward [her] disability and Schedule A
status.” Pl.’s Decl. ¶ 29.
In July 2018, Charlene McCollum, a human resources officer, advised Ms. Montgomery
and three other employees who were appointed under the same GS-07 human resources
specialist position announcement about the procedural errors in their appointments. Def.’s Facts
¶ 20; Pl.’s Facts ¶ 20 (disputing only whether a regularization process was necessary). Ms.
McCollum expressed her view that the Department was “required to either cancel or regularize
5 In her opposition brief, Ms. Montgomery claims this document was “improperly added to the record” after discovery closed, but provides no legal citations or further argument. See Pl.’s Opp’n at 10, ECF No. 41. The Court therefore considers this argument waived. See Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[P]erfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are deemed waived.”).
3 the actions,” and that she was awaiting an accurate and classifiable position description to begin
the regularization process. See Ex. 8, July 31, 2018 McCollum Email, ECF No. 38-8.
In September 2018, Taneshia Horton was transferred from the VA Capitol Health Care
Network to the Washington D.C. Veterans Affairs Medical Center as an Assistant Human
Resources Officer, and she became Ms. Montgomery’s second-line supervisor. Def.’s Facts
¶¶ 11, 13; Ex. 4 ¶¶ 4–6, Horton Aff., ECF No. 38-4. Ms. Horton also has a disability. Def.’s
Facts ¶ 12. That month, Ms. Montgomery learned that Ms. Horton had stated that Schedule A
employees should be terminated at a meeting from which Ms. Montgomery had been excluded.
Pl.’s Decl. ¶ 5. The next month, during a conversation between Ms. Montgomery and Cheryl
Williams, an HR Supervisor, Ms. Williams raised her voice, and when another employee asked
which side Ms. Montgomery’s good ear was on, Ms. Williams said, “she cannot hear.” Id. ¶ 6.
After that interaction, Ms. Horton asked Ms. Montgomery if she had a disability. Id. Ms.
Montgomery believes that these incidents “created a hostile work environment.” Id. ¶ 7.
In February 2019, after delays in receiving a corrected position description, Ms.
Montgomery reapplied for her position non-competitively, a process she described as not
“strenuous,” albeit “stressful.” 6 Pl.’s Dep. at 52:10–15; Def.’s Facts ¶¶ 25–26; Pl.’s Facts ¶¶ 25–
26. “[A]t least two of the four individuals who were asked to reapply were not impaired.”
Def.’s Facts ¶ 29. In the months of February and March 2019, numerous corrections were made
to Ms. Montgomery’s personnel file to regularize her appointment. See id. ¶¶ 30–37. A human
resources specialist advised Ms. Montgomery that she could decline the regularized position, but
that if she did, the erroneous action would be cancelled, and she would return to her prior human
6 Ms. Montgomery argues that the Department policies did not mandate reapplication, so requiring reapplication was a deviation from those policies. Pl.’s Opp’n at 7.
4 resources assistant position. Id. ¶ 35. During the regularization process, Ms. Montgomery
continued performing her human resources specialist work. Id. ¶ 36. In the end, Ms.
Montgomery’s Standard Form 50 (“SF-50”) did not need to be cancelled, and the corrections
were made to it, with an effective date of her appointment remaining as July 23, 2017, the date
she was initially selected for the job. Id. ¶¶ 33, 38–39. Plaintiff testified at her deposition that
her disability was not the reason that the Department asked her to reapply to regularize the
erroneous appointment. Id. ¶ 43.
On August 8, 2019, the Department retroactively promoted Plaintiff, effective July 22,
2018, from a GS-07 to a GS-09 human resources specialist position, which included a raise of
about $9,000. Id. ¶ 40. Defendant cites Ms. Montgomery’s deposition testimony and Request
for Admissions Responses for the proposition that she received full backpay, credit for all time
served, and was made whole. Id. ¶ 41. Ms. Montgomery states she “is still owed within-grade
increases,” but provides no citation for this point. See Pl.’s Facts ¶ 41. Regardless, the parties
do not dispute that Ms. Montgomery testified that her disability was not the reason her credit
time and promotion were delayed. Def.’s Facts ¶ 44. Nor do they dispute that Ms. Montgomery
was later promoted to the GS-11 level. Id. ¶ 42.
“Following her efforts to pursue administrative remedies, Ms. Montgomery brought this
action on June 14, 2022, alleging several different discrimination claims, including race, gender,
and disability discrimination.” Montgomery v. McDonough (“Montgomery II”), No. 22-cv-1715,
2024 WL 1344443, at *4 (D.D.C. Mar. 29, 2024); see Compl. at 12–20, ECF No. 1. After
granting Defendant’s Rule 12(b)(6) motion in 2023, the Court granted Ms. Montgomery leave to
file an amended complaint. Montgomery v. McDonough, 682 F. Supp. 3d 1, 19 (D.D.C. 2023).
Ms. Montgomery filed her Amended Complaint in August 2023, alleging two closely related
5 disability discrimination claims under the Rehabilitation Act: a disparate treatment claim and a
hostile work environment claim. See Am. Compl. at 12–14, ECF No. 22.
Defendant again moved to dismiss under Rule 12(b)(6), but this time, the Court
concluded that Ms. Montgomery’s narrowed claims survived. Montgomery II, 2024 WL
1344443, at *5. Specifically, the Court concluded that certain alleged conduct could constitute
adverse actions, including (1) “that Ms. Montgomery did not receive a 2017 performance
appraisal and that her failure to receive that appraisal prevented her from obtaining a cash
award;” (2) “that she should have been promoted immediately upon her rehiring,” and that it was
“easy to infer that Ms. Montgomery’s prospects for promotion would eventually be adversely
affected if her 20 months of experience in the role were no longer credited in her employment
records;” and (3) that if “Ms. Montgomery did not actually need to reapply for her position for
the Department to regularize it,” she had pleaded enough to allege that “the Department’s
approach to rehiring her was an adverse action.” Id. at *8–9. The Court also found that Ms.
Montgomery had met her burden at the pleading stage of plausibly alleging that these actions
were based on her disability, noting “that two different supervisors allegedly expressed hostility
against Ms. Montgomery that was connected to her disability, one of those supervisors
reportedly took issue with hiring Schedule A disabled employees, the other supervisor failed to
give Ms. Montgomery a proper performance appraisal, and another employee forced Ms.
Montgomery to unnecessarily reapply for her job.” Id. at *11. As for her hostile work
environment claim, the Court determined that this claim “narrowly survive[d].” Id. at *12. First,
the Court found that even “assuming that her unpleasant interactions with Ms. Horton and Ms.
Williams were motivated by anti-disability animus . . . these conflicts alone are too minor to state
a claim.” Id. But, when combined with “the reapplication process and the failure to receive a
6 performance appraisal,” the Court concluded that Ms. Montgomery had pleaded a plausible
claim of a hostile work environment, and denied Defendant’s motion to dismiss. Id. at *13.
After discovery, Defendant moved for summary judgment. Def.’s Mot. Summ. J.
(“MSJ”), ECF No. 38. Defendant argues that Ms. Montgomery is not disabled within the
meaning of the Rehabilitation Act, that she has not experienced any harm required to state a
claim, that she has failed to provide evidence that her disability was the reason the Department
took the alleged adverse actions, and that there is no evidence of severe or pervasive
discriminatory conduct to support a hostile work environment claim. Id. at 1–2. The motion is
now fully briefed and ready for the Court’s consideration. See Pl.’s Opp’n, ECF No. 41; Def.’s
Reply, ECF No. 42.
III. LEGAL STANDARD
“The court shall grant summary judgment 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). A fact is material if it “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is genuine “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
“[T]he court must view the evidence ‘in the light most favorable to the nonmoving party and . . .
draw all reasonable inferences in favor of the nonmoving party.’” Grosdidier v. Broad. Bd. of
Governors, 709 F.3d 19, 23–24 (D.C. Cir. 2013) (quoting Talavera v. Shah, 638 F.3d 303, 308
(D.C. Cir. 2011)). To support that a fact is genuinely disputed, the non-moving party must cite
to “particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). But summary judgment is warranted “against a party who
fails to make a showing sufficient to establish the existence of an element essential to that party’s
7 case, and on which that party will bear the burden of proof at trial . . . since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Celotex Corp., 477 U.S. at 322–23.
IV. ANALYSIS
The Court first analyzes the preliminary issue of whether Defendant is entitled to
summary judgment because Ms. Montgomery has failed to provide evidence that she is disabled
within the meaning of the Rehabilitation Act. The Court concludes that there are material factual
disputes that preclude summary judgment on this issue. The Court then addresses Ms.
Montgomery’s disparate treatment and hostile work environment claims. On both claims, the
Court concludes that Ms. Montgomery has failed to meet her burden to establish a genuine
material dispute that would warrant presenting her claims to a jury, and that Defendant is
therefore entitled to summary judgment.
“The Rehabilitation Act of 1973 governs employee claims of [disability] discrimination
against the Federal Government.” Ward v. McDonald, 762 F.3d 24, 28 (D.C. Cir. 2014) (quoting
Barth v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993)). The Act provides that “[n]o otherwise
qualified individual with a disability in the United States, as defined in section 705(20) of this
title, shall, solely by reason of her or his disability” be discriminated against by a federal
employer. 29 U.S.C. § 794(a). Section 705(20) incorporates the definition of “individual with a
disability” from the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12102. Id.
§ 705(20)(B). “The standards used to determine whether [the Rehabilitation Act’s
nondiscrimination provision] has been violated . . . shall be the standards applied under . . . the
Americans with Disabilities Act . . . .” Id. § 794(d).
8 “Because of the similarities between the Rehabilitation Act and the ADA, cases
interpreting either are applicable or interchangeable.” Buie v. Berrien, 85 F. Supp. 3d 161, 171
n.6 (D.D.C. 2015) (quoting Alston v. Wash. Metro. Area Transit Auth., 571 F. Supp. 2d 77, 81
(D.D.C. 2008)). But one difference between the acts is that “the Rehabilitation Act has a clear
‘but-for’ causation standard whereby the disability must be ‘the reason that the employer decided
to act.’” Montgomery II, 2024 WL 1344443, at *6 (quoting Rosen-Kellogg v. Mayorkas, No. 22-
cv-3028, 2023 WL 7697043, at *8 (D.D.C. Nov. 15, 2023)); Drasek v. Burwell, 121 F. Supp. 3d
143, 154 (D.D.C. 2015) (“For Rehabilitation Act claims, courts have found that the presence of
the word ‘solely’ means that the causation element of intentional discrimination and retaliation
claims brought under that Act cannot be satisfied by a motivating factor test; rather, the
applicable analysis is the traditional ‘but-for’ causation standard.”).
“[T]he two essential elements of a discrimination claim 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). After
this Court decided Montgomery II, the Supreme Court clarified that a Title VII plaintiff need
only show “some harm” to establish an adverse employment action. See Muldrow v. City of St.
Louis, 601 U.S. 346, 350 (2024). Defendant argues that the “some harm” standard is applicable
to Rehabilitation Act claims. MSJ at 14. Ms. Montgomery does not address the applicable
standard in her opposition brief. See Pl.’s Opp’n at 16–17. As the Court previously noted, other
courts in this District have extended the standard for an adverse employment action in the
Title VII context to Rehabilitation Act claims. Montgomery II, 2024 WL 1344443, at *6–7
(citing Bain v. Off. of Att’y Gen., 648 F. Supp. 3d 19, 50 (D.D.C. 2022)). The Court does so
9 here, but notes that this issue is not dispositive because the Court finds that Ms. Montgomery’s
claims fail on the “because of” element.
Discrimination claims brought under the Rehabilitation Act that are based on
circumstantial evidence are analyzed under the McDonnell Douglas burden-shifting framework.
Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13, 16 (D.C. Cir. 2009) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973)). Under that framework, the plaintiff has
the initial burden of establishing her prima facie case of discrimination; then the defendant has
the burden of producing evidence of a legitimate, nondiscriminatory reason for its actions. Id.
at 16–17. If the defendant meets its burden, then to decide a motion for summary judgment, “the
district court must resolve one central question: Has 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 her protected trait? Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008).
A. Whether Ms. Montgomery has a “Disability”
Defendant moves for summary judgment on the issue of whether Ms. Montgomery has a
disability under the meaning of the Rehabilitation Act. See MSJ at 10–13. Ms. Montgomery has
at least presented enough evidence to create a genuine dispute, so the Court will not grant
summary judgment on this basis.
The ADA defines the term “disability” as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1).
Under the ADA, “major life activities” include the activity of “hearing.” Id. § 12102(2)(A). “An
10 impairment is a disability within the meaning of this section if it substantially limits the ability of
an individual to perform a major life activity as compared to most people in the general
population.” 29 C.F.R. § 1630.2(j)(1)(ii).
To argue that Ms. Montgomery has not demonstrated an impairment “that substantially
limits one or more of the major life activities,” Defendant lists the activities Ms. Montgomery
testified she could do despite her hearing loss. See MSJ at 11. Those activities include
“functioning in the workplace, caring for herself, living on her own, driving, shopping,
travelling, going out to eat, sleeping, using a computer, writing a letter, exercising, [and]
gardening.” Id.
But as Ms. Montgomery argues, the major life activity affected by her hearing loss in her
left ear is “hearing.” See Pl.’s Opp’n at 12; 42 U.S.C. § 12102(2)(A). Ms. Montgomery declares
that her hearing impairment “requires [her] to adjust [her] head or position [her]self to hear
conversations and has also caused vertigo.” Pl.’s Decl. ¶ 2. Consistent with this declaration, she
testified at her deposition that she had no problems hearing the questions, even without hearing
aids, because she could hear by turning. See Pl.’s Dep. at 137:4–10. She also declares that she
has been treated by “qualified medical professionals” and that her Schedule A documentation
confirming her disability “was signed by an otolaryngologist (ENT doctor),” Pl.’s Decl. ¶¶ 2–3,
though the letter does not label the disability from which Ms. Montgomery suffers, Ex. 21, ECF
No. 38-21.
Based on this record, the Court cannot say that no reasonable jury could conclude that
Ms. Montgomery’s hearing impairment substantially limits her ability to hear as compared to the
general population. Ms. Montgomery having to turn her head or body in order to hear is
analogous to a monocular individual having to turn his head to see due to a diminished visual
11 field. See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999) (“[T]he [ADA] requires
monocular individuals, like others claiming the Act’s protection, to prove a disability by offering
evidence that the extent of the limitation in terms of their own experience, as in loss of depth
perception and visual field, is substantial.”). This record evidence creates a dispute of material
fact as to whether Ms. Montgomery’s hearing loss is substantial and precludes summary
judgment for Defendant on this issue. Because the Court reaches this conclusion on the first
definition of “disability” in 42 U.S.C. § 12102(1), the Court need not discuss the applicability of
the other two definitions to resolve this motion.
B. Disparate Treatment Claim
As mentioned above, Ms. Montgomery’s disparate treatment claim requires both (1) an
adverse employment action and (2) that the action was taken because of her disability. See
Baloch, 550 F.3d at 1196. Though the harm need not be significant, an employee must show at
least “some harm” to establish an adverse employment action to support a discrimination claim.
See Muldrow, 601 U.S. at 350. And the employee’s disability must be the but-for cause of the
adverse action. Montgomery II, 2024 WL 1344443, at *6; Drasek v. Burwell, 121 F. Supp. 3d
143, 154 (D.D.C. 2015).
The Court previously identified possible adverse actions, including the delay in providing
Ms. Montgomery with her 2017 performance appraisal, which was required for her to receive a
cash award; and requiring Ms. Montgomery to unnecessarily reapply for her position, and then
failing to credit her for time she had held the job and delaying her promotion. Montgomery II,
2024 WL 1344443, at *7–9. The Court addresses these actions and whether they were causally
connected to Ms. Montgomery’s disability. At bottom, even accepting that those actions
12 constitute adverse employment actions, there is no genuine dispute that the actions were not
taken because of Ms. Montgomery’s disability, so Defendant is entitled to summary judgment.
1. Late Performance Appraisal
As discussed above, the Court previously determined that there were “enough factual
allegations to make clear that Ms. Montgomery did not receive a 2017 performance appraisal and
that her failure to receive that appraisal prevented her from obtaining a cash award.” Id. at *8.
But Defendant has produced evidence that refutes that the lack of a cash award was linked to the
delay of Ms. Montgomery’s appraisal. The parties do not dispute that Ms. Montgomery received
a rating of “fully successful” for fiscal year 2017. See ECF No. 41-3 at 18. 7 And Ms.
Montgomery does not argue that she deserved a higher rating. See Pl.’s Opp’n at 17. In
December 2016, the VA Deputy Secretary sent an email explaining that total awards for fiscal
year 2017 were cut about 30% from the previous year due to spending caps set by the
Comprehensive Addiction & Recovery Act of 2016. Ex. 19 at 1. The guidance states also that,
with exceptions not relevant here, “[a]ll rewards are discretionary” and that “award approving
officials have the authority to decide that a type of award or particular award will not be paid.”
Id. at 4. Defendant argues that Ms. Montgomery’s “fully successful” rating did not warrant an
award for that fiscal year. MSJ at 24; Def.’s Reply at 10–11.
Ms. Montgomery disputes whether performance awards were “slashed at DC VAMC in
2017.” Pl.’s Facts ¶ 64. Rather than submitting evidence to the contrary, she submitted the same
email that Defendant cites with a portion of the header circled, indicating that a person in the
Richmond VA Medical Center received the email. Compare Ex. 19, with Pl.’s Ex. 2 at 24–29,
7 For pincites to Exhibits attached to the parties’ briefs, ECF Nos. 38-1 through 38-22, and ECF No. 41-3, the Court refers to the pagination assigned by the ECF system unless otherwise indicated.
13 ECF No. 41-3. But nothing in the document suggests it is limited to the Richmond VA, rather
than the VA broadly. See Pl.’s Ex. 2 at 24–29.
Further, Ms. Montgomery has declared that two of her colleagues “received timely
appraisals and corresponding awards.” Pl.’s Decl. ¶ 25. But Ms. Montgomery does not state
what rating those colleagues received. And despite identifying inaccuracies in her appraisal, she
has not listed her “fully sufficient” rating among them. See id. ¶ 26; RFA No. 3; Pl.’s Dep.
98:5–11 (discussing that inaccuracies concerned her GS level and former last name). Thus, the
possibility that those colleagues received higher appraisals that justified their awards does not
render Defendant’s explanation pretextual.
Even were the Court to assume that Ms. Montgomery would have received a cash award
had she received a timely performance review, she has presented no evidence connecting the
delay to her disability. The parties do not dispute that Ms. Montgomery’s supervisor left the
Department toward the end of fiscal year 2017, which is a legitimate, non-discriminatory
explanation for a delayed performance appraisal. See Def.’s Facts ¶ 59. Further, as discussed
above, the lack of payment of cash awards was tied to budgetary concerns, a legitimate factor
Ms. Montgomery acknowledged during her deposition. Pl.’s Dep. 104:5–15.
More importantly, Ms. Montgomery’s own testimony refutes any causal connection
between her disability and the delayed appraisal. When asked at her deposition whether she
received a late and inaccurate appraisal because of her disability, she responded, “I never
contended that had anything to do with my disability.” Pl.’s Dep. 100:16–20. Further, Ms.
Montgomery explained that Ms. McCollum was the decision maker when it came to promotions
and performance money, and confirmed that she was not claiming that Ms. McCollum
discriminated against her. Pl.’s Dep. 107:8-20; Ex. 20, Pl. Interrog. Ans. No. 8, ECF No. 38-20.
14 Ms. Montgomery now disputes whether “[a]s to the cash award, Ms. McCollum was the
decisionmaker,” and whether “Ms. McCollum discriminated against her based on her disability.”
See Def.’s Facts ¶ 66; Pl.’s Facts ¶ 66. To explain this dispute, she responds that “[o]ver time,
Plaintiff received evidence that Schedule A and her disability became the focal point in Ms.
Williams’ decisions.” Pl.’s Facts ¶ 66. On its face, this dispute does not appear genuine, as
Defendant’s statement pertains to Ms. McCollum, and Plaintiff’s response pertains to Ms.
Williams. See id. Ms. Montgomery also cites to a paragraph in her declaration and emails that
have nothing to do with her 2017 performance appraisal. See Pl.’s Facts ¶ 66 (citing Pl.’s Decl.
¶ 43, Pl.’s Ex. 2 at 19–23). Thus, Ms. Montgomery has failed to cite to “particular parts of
materials in the record” that would support that Ms. McCollum discriminated against Ms.
Montgomery when she did not award her a performance cash award for fiscal year 2017. See
Fed. R. Civ. P. 56(c)(1)(A); see also Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir.
2007) (precluding “a party from creating an issue of material fact by contradicting prior sworn
testimony” absent persuasive reasons for the contradiction).
Lastly, Ms. Montgomery argues that “similarly situated employees under the same
supervisors did receive awards” despite budgetary constraints. Pl.’s Opp’n at 17. Ms.
Montgomery previously identified HR Specialists Danika Parker and Lashawna Norman as
purported comparators who were previously “supervised by Ebony Jerry and then later realigned
under Cheryl Williams” and who “received their Fiscal Year-FY 2017 performance appraisals
and monetary award in a timely manner.” Ex. 20, Int. No. 8. But Ms. Montgomery failed to
provide any evidence showing that these purported comparators are actually similarly situated, or
different, in crucial ways. To succeed on a comparator theory of discrimination at summary
judgment, there must be evidence to support that the comparator is “nearly identical.” Joyner v.
15 Morrison & Foerster LLP, 140 F.4th 523, 530 (D.C. Cir. 2025); McGill v. Munoz, 203 F.3d 843,
848 (D.C. Cir. 2000) (citing Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514
(D.C. Cir. 1995)).
For starters, Ms. Montgomery has failed to state, let alone identify record evidence
supporting, that Ms. Parker or Ms. Norman received the same “fully successful” rating as Ms.
Montgomery, rather than a higher rating of “excellent” or “outstanding.” See Pl.’s Opp’n at 9;
Pl.’s Decl. ¶ 25; Pl.’s Ex. 2 at 18. If they received higher ratings and cash awards, then this
would support Defendant’s argument that cash awards were reserved for superior performance.
See MSJ at 23. Second, Ms. Montgomery does not identify any evidence supporting that either
purported comparator was not disabled. See Pl.’s Opp’n at 9; Pl.’s Decl. ¶ 25. In fact, a report
prepared by Kimberlynn Davis supports that Ms. Norman was appointed under Schedule A
authority. See Ex. 12 at 3. If other disabled employees who were part of this fact-finding report
received cash awards despite their disabled status, this too would tend to defeat Ms.
Montgomery’s claim that her disability was the reason she did not receive an award.
Accordingly, based on the evidence the parties have presented, the Court concludes that no
reasonable jury could find that Defendant’s delay in providing Ms. Montgomery her
performance appraisal constituted disability discrimination.
2. Reapplication Process and Delayed Credit Time and Promotion
The parties do not dispute that there were errors with Ms. Montgomery’s July 2017
appointment. See MSJ at 16; Pl.’s Opp’n at 4. Rather, they dispute what steps, if any, were
required to regularize her appointment.
As for the adverse action, Ms. Montgomery does not argue that having to reapply for her
position was in itself harmful, but ties reapplication to the downstream effects of her delayed
16 promotion and denial of service credit. See Pl.’s Opp’n at 16–17. Specifically, she argues that
“[d]ue to the reapplication process, Plaintiff was denied credit for approximately 20 months of
service and her promotion to GS-09 was delayed by over a year.” Id. at 16. Ms. Montgomery
admits that when she was retroactively promoted, she received backpay, but argues that
“[r]etroactive pay cannot erase” harms such as “loss of pay, inability to apply for higher-level
opportunities, and financial hardship.” Id. Despite the additional financial hardship Ms.
Montgomery faced while receiving a reduced salary, the case she cites supports the opposite
conclusion: “[a]n employer may cure an adverse employment action,” in that case, low
performance ratings and withholding of a bonus, “before that action is the subject of litigation.”
Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003); see id. at 1294 (“Because [the supervisor]
corrected her error in rating [plaintiff] and increased [plaintiff’s] bonus accordingly before
[plaintiff] filed suit, there was no unremedied adverse employment action when the suit was filed
and the district court properly granted summary judgment in favor of the [defendant].”).
Regardless, the Court need not rest its decision on this point because Ms. Montgomery has also
failed to make the causal connection between having to reapply for her position and the
corresponding delayed promotion with discrimination because of her disability.
The parties do not dispute that Ms. McCollum made the decision to have Plaintiff reapply
for her position to regularize her appointment. See Def.’s Facts ¶ 47. Nor do they dispute that
“Plaintiff testified that her disability was not the reason that the Department asked her to reapply
to regularize the erroneous appointment.” Id. ¶ 43; Pl.’s Dep. 55:12–19. And the parties do not
dispute that Ms. Montgomery “also testified that her disability was not the reason her credit time
and promotion were delayed.” Def.’s Facts ¶ 44. But, confusingly, Ms. Montgomery does
dispute whether “Ms. McCollum, the decisionmaker in each instance, did not discriminate
17 against her based on her hearing loss.” Id. ¶ 45; Pl.’s Facts ¶ 45. Ms. Montgomery’s response
only adds to the confusion. She states that “Plaintiff only went by Ms. McCollum’s email
initially, but later received information showing Ms. McCollum’s actions were based on
Plaintiff’s Schedule A/disability,” and cites to paragraph 32 of her declaration. Pl.’s Facts ¶ 45.
That paragraph provides, “[i]n October 2021, Ms. McCollum was removed from her position.
Her removal followed continued scrutiny regarding her handling of personnel actions, including
mine.” Pl.’s Decl. ¶ 32; see also id. ¶ 29 (declaring that “when viewed in the broader context of
discriminatory conduct, the overall treatment was rooted in animus toward [her] disability and
Schedule A status”). Ms. Montgomery does not describe the nature of this “scrutiny” or provide
further explanation for Ms. McCollum’s removal. This speculation, unsupported by evidence, is
insufficient to create a genuine dispute regarding Ms. McCollum’s discriminatory motives to
survive summary judgment.
The back pedaling does not stop there. The parties do not meaningfully dispute that the
same reapplication process was used both for employees with disabilities and for those without
disabilities. See Def.’s Facts ¶ 29 (“Notably, at least two of the four individuals who were asked
to reapply were not impaired.”); Pl.’s Facts ¶ 29 (“Undisputed.”). Ms. Montgomery argues in
her brief that her promotion delay “was a direct result of the unnecessary reapplication process
and the denial of service credit—both of which disproportionately impacted Plaintiff and other
Schedule A employees.” Pl.’s Opp’n at 16–17. But if at least half of the employees who were
made to reapply were not impaired, it is unclear how Ms. Montgomery could substantiate her
allegation of a disproportionate impact, and her opposition brief provides no citation to the
record to attempt to do so. See id. Ms. Montgomery could have cited to her declaration, which
states that the requirement that she reapply for a position to address administrative errors “was
18 not imposed on similarly situated employees who were not Schedule A.” Pl.’s Decl. ¶ 15.
Setting aside that this statement is too conclusory to defeat a motion for summary judgment, see
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999), it also seemingly contradicts her own
Response to Defendant’s Statement of Material Facts, without explanation, see Def.’s Facts ¶ 29;
Pl.’s Facts ¶ 29. Ms. Montgomery cannot create a genuine dispute by merely contradicting
herself. See Pyramid Sec. Ltd. v. IB Resol., Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991). Simply
put, she has failed to identify a single non-disabled individual whose appointment suffered from
similar administrative errors who was not required to reapply for their position, and her
conclusory, contradictory assertions are insufficient.
Lastly, even accepting as true that Ms. Horton “stated that Schedule A employees should
be terminated; [and] pointedly asked Plaintiff if she had a disability after there was an incident
where Plaintiff was yelled at by Ms. Williams and mocked, ‘Yeah, she can’t hear,’” these
statements do not constitute the “direct evidence of discrimination” Ms. Montgomery claims.
Pl.’s Opp’n at 13. Ms. Horton and Ms. Williams have “denied having any input into Ms.
McCollum’s decisions about credit time and promotion,” and Defendant has submitted their
affidavits to that effect. Def.’s Facts ¶ 58 (citing Ex. 3, Williams Aff. No. 43, ECF No. 38-3; Ex.
4, Horton Aff. No. 49). Ms. Montgomery has failed to point to any contrary evidence supporting
that they were involved in any relevant decisions to have Ms. Montgomery reapply for her
position or her delayed promotion. See Pl.’s Opp’n at 13–14, 16–17. Their mere status as
supervisors is insufficient to establish direct discrimination if they were not in some way
decision makers. See Holbrook v. Reno, 196 F.3d 255, 260 (D.C. Cir. 1999).
19 Absent evidence that the Department took adverse action toward Ms. Montgomery
because of her disability, her disparate treatment claim fails. Accordingly, the Court grants
Defendant’s motion for summary judgment on this claim.
C. Hostile Work Environment Claim
“[J]udges in this District ordinarily assume that” the Rehabilitation Act “permits a hostile
work environment claim.” Cong. v. District of Columbia, 324 F. Supp. 3d 164, 169–70 (D.D.C.
2018). “To prevail on such a claim, a plaintiff must show that [her] employer subjected [her] to
‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment.’”
Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Courts
look to “the totality of the circumstances, including the frequency of the discriminatory conduct,
its severity, its offensiveness, and whether it interferes with an employee’s work performance.”
Id.
Previously, the Court considered both Ms. Montgomery’s unpleasant interactions with
Ms. Horton and Ms. Williams—which “alone [were] too minor to state a claim”—and “the
reapplication process and the failure to receive a performance appraisal” as part of the totality of
circumstances and concluded that the hostile work environment claim “narrowly survive[d].”
Montgomery II, 2024 WL 1344443, at *12–13. But now, having concluded that there is no
genuine dispute that the delayed performance appraisal and reapplication process were not
motivated by anti-disability animus, the Court finds that Plaintiff has failed to identify evidence
sufficient to meet the “high bar” of conduct sufficiently “severe or pervasive” such that it altered
the conditions of Ms. Montgomery’s employment and created an abusive working environment.
See id. at *12. Put differently, having determined that the delayed performance appraisal and
20 reapplication process were not motivated by discriminatory intent, the Court agrees with
Defendant that “no reasonable jury could find that the alleged conduct established a hostile work
environment.” MSJ at 27.
Ms. Montgomery supports her hostile work environment claim with citations to her
responses to Interrogatory Numbers 4 and 8, but Interrogatory Number 8 concerned her late
performance appraisal, which as discussed above was not discriminatory. See Pl.’s Opp’n at 18;
Ex. 20, Interrogatory Ans. No. 8. Ms. Montgomery responded to Interrogatory Number 4:
On October 2, 2018, Cheryl Williams, HR Supervisor stated, “yeah, she cannot hear.” Warren Foster was in the office when Cheryl Williams made that statement regarding my hearing. Following this conversation, Tanisha Horton, Assistant Human Resources Officer, asked me if I had a disability. On September 5, 2018, Taneisha Horton, Assistant Human Resources Officer stated, “employees with disabilities who were hired under the Schedule A hiring authority should be terminated.” Shannon Carroll, Lashawna Norman, and Shavonne Taylor all have first-hand knowledge of Horton’s statements.
Ex. 20, Interrogatory Ans. No. 4; compare Def.’s Facts ¶ 46, with Pl.’s Facts ¶ 46 (not disputing
that “the only discriminatory statements made were by Ms. Horton concerning Plaintiff’s
Schedule A status and inquiring as to whether Plaintiff had a disability, and by Ms. Williams on
one occasion when she commented about Plaintiff’s hearing issue”). As the Court previously
explained, a few discrete instances when supervisors made rude comments about Ms.
Montgomery’s disability fail to establish the kind of severely or pervasively abusive workplace
necessary for a hostile work environment claim. Montgomery II, 2024 WL 1344443, at *12–13.
Ms. Montgomery argues that “[t]aken together, the frequency, content, and consequences of
these incidents materially altered the conditions of Plaintiff’s employment.” Pl.’s Opp’n at 18.
But if anything, these limited occurrences of upsetting comments demonstrate that any hostility
was infrequent, and clearly did not prevent Ms. Montgomery from going on to achieve additional
promotions in the Department. See Def.’s Facts ¶¶ 40, 42, 44. The conduct of Ms.
21 Montgomery’s superiors “may have been tactless and ill-mannered,” or attributable to an
“expression of frustration,” but Ms. Montgomery cites to no evidence rising to a “level of
malevolence” that would enable a jury to find for her on this claim. See Brooks v.
Grundmann,748 F.3d 1273, 1277–78 (D.C. Cir. 2014). Accordingly, the Court grants
Defendant’s motion for summary judgment as to her hostile work environment claim.
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 38) is
GRANTED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: November 19, 2025 RUDOLPH CONTRERAS United States District Judge