Pauling v. District of Columbia

• Court: District Court, District of Columbia
• Decided: December 29, 2017
• Docket: Civil Action No. 2013-0943
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YOLANDA PAULING,

Plaintiff, Civil Action No. 13-943 (BAH) v. Chief Judge Beryl A. Howell DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

The plaintiff, Yolanda Pauling, an African-American woman currently employed as a

Senior Crime Analyst with the District of Columbia Metropolitan Police Department (“MPD”),

initiated this action against defendant District of Columbia alleging employment discrimination

on the basis of race, gender, and disability; retaliation; hostile work environment; and failure to

accommodate a disability in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),

as amended, 42 U.S.C. § 2000e et seq.; the District of Columbia Human Rights Act (“DCHRA”),

D.C. Code § 2-1401.01 et seq.; Title I of the Americans with Disabilities Act of 1990 (“ADA”),

as amended, 42 U.S.C. § 12111 et seq.; and Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794. 1 Pending before the Court is the defendant’s Motion for Summary Judgment

(“Def.’s Mot.”), ECF No. 43, on all counts. For the reasons explained below, the defendant’s

motion is granted.

1 The plaintiff’s complaint also included claims of employment discrimination on the basis of race and retaliation against the District of Columbia, under 42 U.S.C. §§ 1981 and 1983, see Amended Compl. ¶¶ 179–216, ECF No. 14, but those claims were voluntarily dismissed by the plaintiff earlier in this litigation, see Pl.’s Notice of Filing (“Pl.’s Notice”) at 1, ECF No. 22.

1 I. BACKGROUND

The plaintiff has been employed with MPD since at least October 3, 2005, when she was

a Grade 9, Step 1 Crime Analyst. Def.’s Statement Undisputed Facts Supp. Mot. Summ. J.

(“Def.’s SMF”) ¶ 3, ECF No. 43-2 (undisputed); Def.’s Mot., Ex. 3, Pl.’s Probationary

Evaluation (“Probationary Evaluation”), ECF No. 54-1 at 16. 2 On August 15, 2010, she was

promoted from a Grade 11, Step 3 position to a Grade 12, Step 1 position, which included a

$9,455 annual salary increase. Def.’s SMF ¶ 4; Pl.’s Mem. Opp’n Def.’s Mot. Summ. J. (“Pl.’s

Opp’n”) at 1, ECF No. 46-1; Def.’s Mot., Ex. 4, Notification of Personnel Action (“Personnel

Action”), ECF No. 54-1 at 19. In 2012, she was promoted to a Senior Crime Analyst, in which

position she remains today. Pl.’s Opp’n at 1; Pl.’s Opp’n, Ex. 26, Deposition of Yolanda Pauling

(“Pl.’s Dep.”) at 4, ECF No. 47-11. The plaintiff maintains workstations at the MPD

Headquarters office and at the Fourth District office. Amended Compl. (“Compl.”) ¶ 16, ECF

No. 14.

The plaintiff’s troubles appear to have started in 2010, after a workplace incident caused

her to suffer chronic back pain. The facts associated with that incident, as well as the plaintiff’s

subsequent requests for accommodations, are detailed below.

A. The March 2010 Incident and Subsequent Requests for Accommodations

Since 2010, the plaintiff has suffered “spasms of the neck and back as well as nerve

damage which causes her to experience chronic pain.” Pl.’s Opp’n at 1. These conditions are

allegedly the result an injury the plaintiff sustained on March 18, 2010, when her coworker,

2 The parties filed many exhibits, with multiple duplicates, with their memoranda in support of and in opposition to the instant motion. Although each exhibit and submission from the parties has been reviewed, only those exhibits necessary to provide context for resolution of the instant motion are cited herein. In addition, the defendant’s exhibits in support of its Motion for Summary Judgment were filed in a single document appearing at ECF No. 54-1, and the plaintiff’s Exhibit 15 includes many separate documents filed as one file appearing at ECF No. 46-16. For ease of review, page number citations to these combined set of exhibits reference the ECF page number, not the page number of the individual exhibits.

2 Tracy Parker, “pulled on the back of [her] chair, while she was using it, causing Ms. Pauling to

suffer a whiplash effect throughout her spinal column.” Id. at 1–2. The plaintiff testified to an

MPD investigator that she immediately went to see her supervisor, Raymond Wickline, after the

incident. Def.’s Mot., Ex. 10, Memorandum from MPD Command Info. Ctr. to MPD Ass’t

Chief of Police (“MPD Investigation Memo”), ECF No. 54-1 at 60. The plaintiff stated that

Wickline “tried to offer some comfort and offered a seat” and that when she went into his office

she was “shaking and almost crying.” Id.; see also Pl.’s Dep. at 23. The plaintiff further

testified that Wickline “did not offer [ ] any medical attention at that time, nor did he fill out a

risk management report.” Pl.’s Dep. at 23. According to Wickline, he “asked if she was okay

and if she needed a doctor.” MPD Investigation Memo, ECF No. 54-1 at 57. The plaintiff then

left work to go to the hospital and, as a result of her injury, took disability leave for the next three

months, until June 14, 2010. Pl.’s Opp’n at 2; Pl.’s Opp’n, Ex. 37, Email from Pl. to Wickline,

March 19, 2010 (“3/19/10, 5:10 p.m. Email”), ECF No. 47-22 at 1. 3

Around one week after the incident, the plaintiff asked Wickline for the status of her

worker’s compensation request. Pl.’s Opp’n, Ex. 38, Email from Pl. to Wickline, March 23,

2010 (“3/23/10, 9:09 a.m. Email”), ECF No. 47-23 at 4. Wickline informed the plaintiff that he

had “call[ed] in an initial report” and had “asked for statements from those involved or who were

witness to the incident,” but that he was away on vacation and any further paperwork would be

delayed until his return. Pl.’s Opp’n, Ex. 38, Email from Wickline to Pl., March 23, 2010

(“3/23/10, 9:46 a.m. Email”), ECF No. 47-23 at 3. The next day, the plaintiff emailed MPD

3 The parties have submitted many identical exhibits in their moving and responsive papers and, for ease of review, citations to the parties’ exhibits will identify the docket number where the referenced section may be found rather than the exhibit number. The parties have also submitted many emails as exhibits, often in files that contain more than one email. Citations to emails will identify the date and time of the email, as well as the docket number in which the referenced email may be found.

3 Assistant Chief Alfred Durham, Jr., to request his assistance with “instituting an adequate

investigation and the enforcement of the necessary paperwork” related to her accident and her

request for worker’s compensation. Pl.’s Opp’n, Ex. 37, Email from Pl. to Alfred Durham,

March 24, 2010 (“3/24/10, 1:13 p.m. Email”), ECF No. 47-22 at 2.

In April 2010, the plaintiff allegedly requested an accommodation for her disability.

Specifically, in a later-filed Charge of Discrimination with the District of Columbia Office of

Human Rights (“OHR”), the plaintiff averred that in April 2010 she “requested an ergonomic

assessment for [her] dual workstations” at the Fourth District and Headquarters offices; “a foot

stand; a glare-reducing computer monitor; ergonomic chairs; an ergonomic mouse; a headset;

and a walking cane.” Def.’s Mot., Ex. 1, Pl.’s OHR Charge of Discrimination (“OHR Compl.”),

ECF No. 54-1 at 6. The plaintiff also asked to be transferred to an office location with an

elevator, as the Fourth District did not have one, and to be able to work from home. Id. On

April 14, 2010, a doctor with the District of Columbia Office of Risk Management (“ORM”)

Disability Compensation Program completed a report of the plaintiff’s injury and disability.

Pl.’s Opp’n, Ex. 30, Plaintiff’s Medical Records (“Medical Records”), ECF No. 52-1 at 3. The

report recommended an ergonomic chair and physical therapy and was accompanied by a

prescription for an “ergonomic assessment—chair, keyboard, foot stand.” Id. at 4–5. On April

22, 2010, a different physician completed a second report, noting that the plaintiff was instructed

to work from home from May 10, 2010, until May 14, 2010. Id. at 6–7. That same day, the

plaintiff emailed Wickline several forms that she averred had to be completed by Wickline for

her worker’s compensation request. Def.’s Mot., Ex. 7, Email from Pl. to Wickline, April 22,

2010 (“4/22/10, 12:28 p.m. Email”), ECF No. 54-1 at 48.

4 On May 10, 2010, Wickline emailed the plaintiff after he learned she was planning her

return to work. Def.’s Mot., Ex. 7, Email from Wickline to Pl., May 10, 2010 (“5/10/10, 10:40

a.m. Email”), ECF No. 54-1 at 48. He informed her that “[a]ll plans to work from home must be

approved by the supervisor ahead of time” and that “[a]ny time you are out for more than 3 days,

a Doctor’s note must be made available to your supervisor to ensure you are cleared to return.”

Id. He also noted that he was waiting for her to send him certain forms and that once she

returned, they would have additional forms to complete. Id. Finally, Wickline acknowledged

that he had heard the plaintiff’s doctor “ha[d] prescribed an ergonomic chair, and noted that “[i]f

this is the case, I need to get a copy of that paperwork as well so we can start a procurement on

the necessary equipment.” Id. In response, the plaintiff sent forms that she claimed to have sent

“weeks ago” and noted that she would forward a copy of her doctor’s note. Def.’s Mot., Ex. 6,

Email from Pl. to Wickline, May 10, 2010 (“5/10/10, 1:58 p.m. Email”), ECF 54-1 at 46. She

also claimed that she had been “ordered by [her] doctor to work from home for recovery

purposes” and that if Wickline had any questions, he could contact her doctor directly. Id. The

plaintiff appears to have sent “a copy of the doctor’s order for an ergonomic assessment for

equipment” to Wickline later that day. Pl.’s Opp’n, Ex. 15, Email from Pl. to Wickline, May 10,

2010 (“5/10/10, 11:48 p.m. Email”), ECF No. 46-16 at 2.

The next day, Wickline responded to the plaintiff, asking her to “just stop and listen for a

second.” Def.’s Mot., Ex. 8, Email from Wickline to Pl., May 11, 2010 (“5/11/10, 6:38 a.m.

Email”), ECF No. 54-1 at 50. He stated that she had sent these forms to him “many, many, many

times,” but that he had “already filled them out and made copies available to everyone who has

wanted or needed one.” Id. He noted that he was still waiting for her to provide a completed

“F1 form” for his signature, an indication “of when you plan to return to work,” and “[a] copy of

5 a Doctor’s note clearing you to return to work.” Id. Wickline also clarified that if the plaintiff

intended to work from home, she needed to “submit a plan for what you will be doing and I need

to approve this ahead of time per branch policy.” Id. As for the plaintiff’s prescription for an

ergonomic assessment, Wickline explained that MPD “do[es] not provide assessments for

medical needs” but that, if the prescription identified the equipment she needed, he would “see

when the equipment will be available.” Id.

On May 12, 2010, the plaintiff sent her completed “Form 1” to Wickline and told him

that she would send him a copy of her doctor’s order. Pl.’s Opp’n, Ex. 15, Email from Pl. to

Wickline, May 12, 2010 (“5/12/10, 7:25 p.m. Email”), ECF No. 46-16 at 39. She also asked

Wickline to send her the “standard form that I need to fill out for my request to work from

home.” Id. Wickline responded that “Form 3” still needed to be filled out by her physician and

needed to be accompanied by a doctor’s note clearing her to return to work. Pl.’s Opp’n, Ex. 15,

Email from Wickline to Pl., May 13, 2010 (“5/13/10, 11:02 a.m. Email”), ECF No. 46-16 at 39.

He then informed the plaintiff that “there are no standard forms for requesting working from

home” but that “a plan must be submitted detailing what will be accomplished, why it needs to

be accomplished from home and a plan for monitoring the accomplishments. That plan must be

approved by the supervisor before an employee can work from home.” Id. He also expressed

concern that “if your health will not permit you to sit at a desk and work on a computer at an

MPD location, then sitting at a desk and working on a computer at home is not going to be good

for your back either.” Id.

On June 11, 2010, the plaintiff emailed Commander James Crane informing him that she

was “in the process of getting clearance from [her] doctor to return to work on Monday, June 14,

2010.” Pl.’s Opp’n, Ex. 36, Email from Pl. to Crane, June 11, 2010 (“6/11/10, 10:59 a.m.

6 Email”), ECF No. 47-21 at 1. In her email, she reminded Crane of certain requests she had

previously made in a phone interview with him: that she be accommodated with a “safe

environment,” that her “manager and coworker need to be held accountable for their actions to

prevent future work place violence incidents,” that she be able to “work at a location that has an

elevator,” that she receive “[s]pecialized equipment to accommodate [her] back injury,” that her

sick leave hours be restored, and that she “not work in a hostile work environment and [ ] not be

a victim of work retaliation,” among other requests. Id. Crane responded later that day,

informing her that she needed to provide “a doctor’s note specifying what equipment is needed

as well as appropriate worker’s comp paperwork clearing the return to work.” Pl.’s Opp’n, Ex.

36, Email from Crane to Pl., June 11, 2010 (“6/11/10, 4:15 p.m. Email”), ECF No. 47-21 at 1.

He also instructed her to report to the Crime Analysis office at Headquarters, as that location had

an elevator. Id.

Around June 22, 2010, the plaintiff filed an internal EEO complaint alleging that MPD

had failed to accommodate her disability. Def.’s SMF ¶ 11 (undisputed). According to the

plaintiff’s later-filed OHR Charge of Discrimination, that complaint also included allegations

“about the office horseplay, the offensive environment and also about the lack of disability

accommodations.” OHR Compl., ECF No. 54-1 at 6.

On June 25, 2010, the plaintiff forwarded her doctor’s notes to Alphonso Lee, an EEO

Counselor with MPD. Def.’s Mot., Ex. 10-A, Email from Pl. to Lee, June 25, 2010 (“6/25/10,

10:17 a.m. Email”), ECF No. 54-1 at 68. In response, Lee asked the plaintiff whether her doctor

had given her an ergonomic evaluation and, as Wickline had previously done, notified her that

the evaluation was “[her] responsibility to obtain.” Def.’s Mot., Ex. 10-A, Email from Lee to Pl.,

June 25, 2010 (“6/25/10, 10:22 a.m. Email”), ECF No. 54-1 at 68. After the plaintiff stated that

7 she had not received an ergonomic evaluation and that she “wasn’t aware that [she] was

responsible for this because this incident occurred at work,” Def.’s Mot., Ex. 10-A, Email from

Pl. to Lee, June 25, 2010 (“6/25/10, 10:23 a.m. Email”), ECF No. 54-1 at 67–68, Lee clarified

that “[t]he ergonomic assessment can only be done if your doctor indicates specifically what you

need” and that the document she had provided “d[id] not indicate any specific accommodation

needed,” Def.’s Mot., Ex. 10-A, Email from Lee to Pl., June 25, 2010 (“6/25/10, 10:32 a.m.

Email”), ECF No. 54-1 at 67. The plaintiff responded that, in her understanding, “once the

ergonomic evaluation is done, this would encompass the necessary equipment that is needed,”

and asked for an update on the status of her EEO investigation. Def.’s Mot., Ex. 10-A, Email

from Pl. to Lee, June 25, 2010 (“6/25/10, 10:43 a.m. Email”), ECF No. 54-1 at 67. Lee informed

the plaintiff that her assault allegation was being investigated and that her “other concerns did

not meet the elements of [a] prima facie case under EEO laws.” Pl.’s Opp’n, Ex. 40, Email from

Lee to Pl., June 25, 2010 (“6/25/10, 10:52 a.m. Email”), ECF No. 47-25 at 6.

On July 13, 2010, Lee checked in on the plaintiff, asking whether her workstation

ergonomic assessment had been “conducted and formalized to determine what accommodations”

she needed. Pl.’s Opp’n, Ex. 40, Email from Lee to Pl., July 13, 2010 (“7/13/10, 3:24 p.m.

Email”), ECF No. 47-25 at 5. The next day, the plaintiff responded that no assessment had been

performed and that “nothing has been done by [her] management and staff.” Pl.’s Opp’n, Ex. 40,

Email from Pl. to Lee, July 14, 2010 (“7/14/10, 7:47 a.m. Email”), ECF No. 47-25 at 6. She also

asked, again, about her pending investigation, id., and Lee stated he would “contact with Human

Resources and assist them in carrying out your ergonomic assessment of your workstation to

prevent any delay,” Pl.’s Opp’n, Ex. 40, Email from Lee to Pl., July 14, 2010 (“7/14/10, 4:49

p.m. Email”), ECF No. 47-25 at 5.

8 Two days later, on July 16, 2010, Lee asked the plaintiff to fill out a Reasonable

Accommodation Request Form “in order to accurately determine what accommodations are

needed per your physician’s direction” and clarified that her doctor should fill out that form.

Pl.’s Opp’n, Ex. 15, Email from Lee to Pl., July 16, 2010 (“7/16/10, 10:38 a.m. Email”), ECF 46-

16 at 47; Pl.’s Opp’n, Ex. 15, Email from Lee to Pl., July 16, 2010 (“7/16/10, 1:27 p.m. Email”),

ECF No. 46-16 at 46–47. In response, the plaintiff asked for an “explanation as to why the

ergonomic assessment was not processed timely.” Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee,

July 16, 2010 (“7/16/10, 5:32 p.m. Email”), ECF No. 46-16 at 46. Lee responded that “the

necessary steps have been put in place to have your ergonomic assessment/evaluation completed

pending your physician’s explanation of what your disability needs in order to perform your

essential job duties.” Pl.’s Opp’n, Ex. 15, Email from Lee to Pl., July 19, 2010 (“7/19/10, 8:35

a.m. Email”), ECF No. 46-16 at 46. According to Lee, the plaintiff had provided to him and to

Human Resources “the same document that only request [sic] the ergonomic assessment, but not

the actual reasonable accommodation (i.e. chair, stand etc.) that your physician deems necessary.

You also stated that you have not informed your supervisor, Mr. Wickline, specifically on what

items are needed to perform your essential job duties.” Id. Lee noted that “[u]pon submission of

the Reasonable Accommodation Form, there will be a timely ergonomic assessment.” Id.

In two successive emails to Lee, the plaintiff took issue with these statements, stating that

she had “submitted previous documentation to HR and [Wickline] regarding the necessary

equipment needed,” Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee, July 19, 2010 (“7/19/10, 9:06

a.m. Email”), ECF No. 46-16 at 45, and that Lee’s July 16, 2010, email “was the first time [she]

had been put on notice and aware that the Reasonable Assessment Request Form was needed in

order to start the process for the evaluation and/or equipment necessities,” Pl.’s Opp’n, Ex. 15,

9 Email from Pl. to Lee, July 19, 2010 (“7/19/10, 9:29 a.m. Email”), ECF No. 46-16 at 45. The

plaintiff further averred that “[t]his is why I have filed with the EEO regarding my claim [Racial

Discrimination, Hostile Work Environment, HIPPA Violation, Disciplinary Action, Work Place

Violence and Harassment] because my management staff has neglected to follow proper protocol

and procedures. Instead of them investigating and handling the case/incident they have made it

very difficult for me to recuperate and work in a safe and secured environment.” 7/19/10, 9:29

a.m. Email, ECF No. 46-16 at 45 (brackets in original).

On July 26, 2010, the plaintiff filled out a Reasonable Accommodation Request Form,

requesting an “[e]rgonomic evaluation ‘station’ to accommodate computer, desk, chair w/

armrest, foot rests, phone (head set), ergonomic mouse, tracking mat, monitor proper position w/

screen to reduce glare; cane.” Def.’s Mot., Ex. 13, Reasonable Accommodation Request Form,

July 26, 2010 (“July 2010 Accommodation Request”), ECF No. 54-1 at 75. On September 17,

2010, the plaintiff followed up with Sharon Vaughan-Roach, MPD’s Diversity Manager, asking

for “the status of the ergonomic assessment evaluation for which was requested since May/June

2010.” Def.’s Mot., Ex. 14, Email from Pl. to Vaughan-Roach, Sept. 17, 2010 (“9/17/10, 9:58

a.m. Email”), ECF No. 54-1 at 77. The same day, Vaughn-Roach responded that, “[a]s

previously stated in several prior email correspondences, once I receive official documentation

from your doctor . . . stating the degree of your impairment (i.e. whether it is a disability and if it

is temporary or permanent) then an ergonomic assessment may be conducted if warranted.”

Def.’s Mot., Ex. 14, Email from Vaughan-Roach to Pl., Sept. 17, 2010 (“9/17/10, 10:20 a.m.

Email”), ECF No. 54-1 at 77.

On October 3, 2010, the plaintiff’s colleague Brandy Cramer emailed a group of

employees including the plaintiff informing them that “[i]f anyone else in the office is requiring

10 special accommodations in regards to chairs, etc. Please let me know and I will forward the

contact information to you in order to go through the formal process and get a chair to meet your

needs specifically.” Pl.’s Opp’n, Ex. 32, Email from Cramer to Pl., et al., Oct. 3, 2010

(“10/3/10, 3:22 p.m. Email”), ECF No. 47-17 at 15. The plaintiff immediately responded that

she was requesting a chair. Pl.’s Opp’n, Ex. 32, Email from Pl. to Cramer, Oct. 3, 2010 (“10/3/10,

3:25 p.m. Email”), ECF No. 47-17 at 15. Cramer then asked whether the plaintiff needed her to

send the contact information or if she “already ha[d] it in the works.” Pl.’s Opp’n, Ex. 32, Email

from Cramer to Pl., Oct. 3, 2010 (“10/3/10, 3:35 p.m. Email”), ECF No. 47-17 at 15. It is

unclear whether the plaintiff responded, but Cramer later explained that the “[f]irst step is to

create a memo specifying what and why with a letter from you [sic] doctor.” Pl.’s Opp’n, Ex.

33, Email from Cramer to Pl., Oct. 3, 2010 (“10/3/10, 3:40 p.m. Email”), ECF No. 47-18 at 1.

On October 12, 2010, the plaintiff wrote to her supervisor and several other MPD

officials, formally requesting a transfer from the Crime Analysis Division to the Intelligence

Section Division, “[d]ue to the workplace incident that resulted in [her] back injury that occurred

on March 18, 2010 at MPD headquarters and the refusal of reasonable accommodations for the

necessary equipment for [her] medical condition.” Pl.’s Opp’n, Ex. 35, Employee Transfer

Request (“Transfer Request”), ECF No. 47-20 at 4. According to the plaintiff, the open position

in the Intelligence Section Division to which she applied was eventually filled by Daniel Hall, a

junior analyst whom the plaintiff, a senior analyst, had trained. Pl.’s Dep. at 77.

On October 15, 2010, Lee submitted an “Exit Letter” to OHR summarizing his final

counseling interview with the plaintiff and stating the EEO office’s determinations. Def.’s Mot.,

Ex. 15, Exit Letter to D.C. Office of Human Rights (“OHR Exit Letter”), ECF No. 54-1 at 79.

As to the March 18, 2010, “alleged ‘assault,’” the EEO office determined that “[t]his is a

11 criminal matter and not administrative” and noted that Commander Crane was overseeing an

investigation of that incident. Id. Her claims of an “alleged delay in filing worker’s

compensation” and of an “alleged HIPPA law violation” were deemed “not [ ] EEO matter[s],”

and her retaliation claim was “a Labor Department issue and not an EEO matter.” Id. As for her

claims that she would be disciplined for her actions, the EEO office noted that “Ms. Pauling is

alleging that she may get reprimanded because of her complaints” but that “[s]he indicated as of

present she has suffered no adverse action.” Id. (emphasis in original). Finally, the EEO office

stated that the plaintiff’s reasonable accommodation claim was “currently being addressed by the

MPD pending Ms. Pauling’s Physician’s communication that she has a temporary or permanent

disability.” Id.

In November 2010, Wickline allegedly offered the plaintiff two ergonomic chairs, both of

which she declined. Pl.’s Dep. at 35–37. She rejected the first chair because it “had feces on it.”

Id. at 35. According to the plaintiff, that chair “had a hazardous sign sitting in the back of the

office,” “it sat in there for about a month,” and “you could smell it when you came in the office.”

Id. at 37. On December 2, 2010, the plaintiff called the Occupational Safety and Health

Administration (“OSHA”) to have the chair removed, and OSHA’s subsequent report indicated

that a “Soiled Chair” had been “removed and placed in the dumpster.” Pl.’s Dep. at 37; Pl.’s

Opp’n, Ex. 23, Letter from Thomas Herbert (OSHA) to Edson Ogunshakin (Dep’t of Real Estate

Servs.) (“OSHA Inspection Report”), ECF No. 47-8 at 2. The plaintiff stated that she rejected

the second chair because it was “unsanitized” and because “the same person who made feces at

work” had previously used that chair. Pl.’s Dep. at 35–36. The plaintiff testified that when

Wickline provided this second chair to her, he told her, “Here’s a chair for you. The one over

12 there, Steve had a accident in it. Ha, ha, ha,” and told her that “if you take this chair, you’ve just

got to clean it off.” Id. at 35.

On December 30, 2010, the plaintiff filed a complaint with OHR alleging that MPD had

discriminated against her on the basis of race, gender, and disability; had retaliated against her

for protected activity; and had failed to accommodate her disability. Def.’s SMF ¶ 1

(undisputed); OHR Compl., ECF No. 54-1 at 5–6. Specifically, the plaintiff claimed that

Wickline had allowed male employees “to pass around lewd photos, hang a swastika in the

office, and to joke around about ‘right wing power.’” OHR Compl., ECF No. 54-1 at 5. She

alleged that after she returned to work from disability leave, “[her] supervisor and coworkers

were giving [her] the silent treatment and began to exclude [her] from staff meetings and data

sharing.” Id. She also mentioned that Wickline had given her “an ergonomic desk chair that had

been soiled and told [her] to clean the chair,” after first providing her with “a feces-stained

ergonomic chair.” Id. Finally, she claimed that white employees who had made similar

accommodation requests received their accommodations without delay, and that after filing her

EEO complaint, she had “suffered a silent treatment” in the office and had her “workload

increasingly diverted to a white, male colleague.” Id. at 6.

In August 2011, the plaintiff designated a union representative and her union completed a

“Member’s Data Intake” report. Pl.’s Opp’n, Ex. 15, Member’s Data Intake (“Union Report”),

ECF No. 46-16 at 23. In her narrative, the plaintiff explained that she was “filing a grievance

based on the premises that I have requested to be transferred (detailed) to work in the Criminal

Intelligence Unit, since I filed a complaint against my management staff in 2010 because I am

being subjected to work in a hostile and retaliatory work environment.” Id. In that report, she

resubmitted her request for a transfer to the Intelligence Division. Id.

13 On January 3, 2012, OHR issued a final determination on the plaintiff’s complaint,

finding probable cause as to only her reasonable accommodation claim. Def.’s SMF ¶ 2; Def.’s

Mot., Ex. 2, Determination on Respondent’s Request for Reconsideration (“OHR Final

Decision”), ECF No. 54-1 at 12–13. OHR concluded that probable cause existed for her

reasonable accommodation claim, based on “several communications” by the ADA coordinator

with Complainant and Complainant’s doctor “to determine whether Complainant’s disability was

temporary or permanent in nature.” Id. at 12. The “Complainant’s doctor notes that, in

accordance with her restrictions, she should use an ergonomic chair and limit both walking and

standing,” but “Respondent did not timely provide Complainant information on Respondent’s

formal and informal procedures for requesting an accommodation.” Id. In addition, OHR found

that “[t]he Supervisory Analyst’s testimony and corroborating e-mails indicate that the

ergonomic chair had been selected without any consultation with Complainant as to whether it

matched her documented medical need.” Id. As for the other claims, OHR determined that the

“hostile work environment allegations do not show a connection with her protected classes of

race, sex and disability,” that “there is no showing of the severity and pervasiveness for a hostile

environment,” and that the plaintiff had “fail[ed] to produce evidence” relevant to her retaliation

claim. Id. at 13.

B. Requests for Accommodations after the OHR Determination

Little activity is documented in the record until June 6, 2012, when the plaintiff again

reached out to Lee to ask about the “status of [her] reasonable accommodations that was

requested two years ago.” Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee, June 6, 2012 (“6/6/12,

10:48 a.m. Email”), ECF No. 46-16 at 69. Lee responded that he would “re-contact the

necessary parties responsible for conducting the ergonomic evaluations” and he also asked if the

plaintiff was “aware of any specific items you need for your workstation that can be ordered that

14 have not been provided to you as of yet?” Pl.’s Opp’n, Ex. 15, Email from Lee to Pl., June 6,

2012 (“6/6/12, 11:14 a.m. Email”), ECF No. 46-16 at 68. The plaintiff did not respond with

specific items but rather forwarded Lee a copy of a “Reasonable Accommodation Request Form

that was submitted to [his] office on November 4, 2010,” and also informed him that she had not

yet had an ergonomic evaluation. Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee, June 7, 2012

(“6/7/12, 10:34 a.m. Email”), ECF No. 46-16 at 68.

On June 11, 2012, Lee informed the plaintiff that she had been granted the “alternative

reasonable accommodation of Telecommuting” and instructed her to “contact Captain Lamont

Coleman, the Telecommuting Coordinator, to ascertain the appropriate documentation/forms to

begin a telecommuting/‘work from home’ program to accommodate [her] current medical

condition.” Pl.’s Opp’n, Ex. 15, Email from Lee to Pl., June 11, 2012 (“6/11/12, 5:29 p.m.

Email”), ECF No. 46-16 at 67. Three days later, on June 14, 2012, Lee followed up to see

whether the plaintiff thought the proffered temporary telecommuting accommodation was

satisfactory, Pl.’s Opp’n, Ex. 15, Email from Lee to Pl., June 14, 2012 (“6/14/12, 2:04 p.m.

Email”) at 66, ECF No. 46-16, but the plaintiff responded that she had “not received any formal

package yet from Captain Coleman,” despite Lee’s clear instruction that she should reach out to

Coleman to obtain the package, Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee, June 14, 2012

(“6/14/12, 3:08 p.m. Email”), ECF No. 46-16 at 66. Lee offered to “ascertain an update

regarding the application packet” and reiterated that “it is anticipated that the telecommute

initiative would be temporary until the ergonomic assessment was completed.” Pl.’s Opp’n, Ex.

15, Email from Lee to Pl., June 14, 2012 (“6/14/12, 3:22 p.m. Email”), ECF No. 46-16 at 65. He

also informed the plaintiff that “[t]he securing of the ergonomic assessment is now pending” and

asked her to provide “[a]n update from your doctor regarding your limitations performing your

15 duties and whether your medical condition is permanent or temporary,” as that information still

had not been furnished. Id. The same day, Lee sent the plaintiff the Telecommuting Application

and again informed her that she should send this application to Captain Coleman. Pl.’s Opp’n,

Ex. 15, Email from Lee to Pl., June 14, 2012 (“6/14/12, 3:50 p.m. Email”) at 57, ECF No. 46-16.

The next morning, the plaintiff again asked for the “appropriate forms and/or paperwork” for her

reasonable accommodations request. Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee, June 15, 2012

(“6/15/12, 10:09 a.m. Email”), ECF No. 46-16 at 65. Almost two weeks later, the plaintiff again

requested that Lee “send [her] the form(s) that needs to be completed by the doctors” and, in

response, Lee sent over another Reasonable Accommodation Form the same day. Pl.’s Opp’n,

Ex. 15, Email from Pl. to Lee, June 26, 2012 (“6/26/12, 3:16 p.m. Email”), ECF No. 46-16 at

64–65; Pl.’s Opp’n, Ex. 15, Email from Lee to Pl., June 26, 2012 (“6/26/12, 6:42 p.m. Email”),

ECF No. 46-16 at 46.

The next communications took place two months later, on August 28, 2012, when the

plaintiff emailed Lee a completed “form from the Workers Compensation doctor regarding

Reasonable Accommodations.” Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee, Aug. 28, 2012

(“8/28/12, 11:16 a.m. Email”), ECF No. 46-16 at 63. In response, Lee asked her to confirm the

“date of diagnosis” for her injuries, and the plaintiff clarified that “[t]he diagnosis happened in

January 2012,” nearly two years after the chair-pulling incident. Pl.’s Opp’n, Ex. 15, Email from

Lee to Pl., Aug. 28, 2012 (“8/28/12, 11:43 a.m. Email”), ECF No. 46-16 at 63; Pl.’s Opp’n, Ex.

15, Email from Pl. to Lee, Aug. 28, 2012 (“8/28/12, 12:46 p.m. Email”), ECF No. 46-16 at 63.

A week later, on September 6, 2012, the plaintiff emailed Lee to ask for an update on the status

of her request. Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee, Sept. 6, 2012 (“9/6/12, 12:36 p.m.

Email”), ECF No. 46-16 at 63. Lee, in turn, asked if she had begun telecommuting, and the

16 plaintiff replied that she had not. Pl.’s Opp’n, Ex. 15, Email from Lee to Pl., Sept. 6, 2012

(“9/6/12, 2:09 p.m. Email”), ECF No. 46-16 at 62; Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee,

Sept. 6, 2012 (“9/6/12, 2:18 p.m. Email”), ECF No. 46-16 at 62. The plaintiff also claimed, in a

later email to a new supervisor, that she had submitted a “request to telecommute for five days”

per week in September 2012. Pl.’s Opp’n, Ex. 15, Email from Pl. to Matthew Bromeland, Apr.

12, 2013 (“4/12/13, 7:54 a.m. Email”), ECF No. 46-16 at 81. She was allegedly informed that

“MPD does not permit 5 days of telecommuting” but that if she submitted a doctor’s note stating

that she needed to do so, her request would be honored. Id.

On January 28, 2013, the plaintiff wrote to Patrick Burke, MPD’s Assistant Chief of the

Homeland Security Division, to “follow up on our meeting of Thursday, January 24, 2013 in

your office concerning my medical reasonable accommodation requests, the temporary solution

suggested by the HR & EEO departments (Telecommuting) and the hostile workplace

environment I have been continually subjected to by Raymond Wickline.” Pl.’s Opp’n, Ex. 34,

Email from Pl. to Burke, Jan. 28, 2013 (“1/28/13, 9:18 a.m. Email”), ECF No. 47-19 at 1. The

plaintiff averred that she “submitted a completed Telecommuting form to Mr. Lee’s attention” on

September 17, 2012, and that on January 10, 2013, she had been advised to complete additional

telecommuting forms. Id. She further stated that on January 15, 2013, she submitted those

forms to Wickline so that he could fill out the supervisor’s section, but that on January 17, 2013,

Wickline emailed “all the analysts in [her] unit indicating ‘For the time being, there will be no

telecommuting or returning to Districts until further notice.’” Id. The plaintiff alerted Burke to

her request to “work five days per week from home,” id. at 2, and also reiterated concerns about

a hostile work environment that she allegedly raised to Burke in an October 2010 meeting,

including Wickline’s habits of “[u]ndermining [her] work performance and personal integrity,”

17 “[w]ithholding information from [her],” “[c]onstantly keeping [her] out of the loop on data

sharing information,” “[m]aking insulting or offensive remarks about [her] medical healthcare

status,” and “[s]tarting, or failing to stop, destructive rumors or gossip amongst [her] coworkers,”

among other complaints. Id. at 3.

On February 21, 2013, Wickline notified the plaintiff that “[t]he Department is ready to

conduct the requested ergonomic assessment for your workspace” and attempted to coordinate a

date for the assessments to be completed at both of the plaintiff’s workstations. Pl.’s Opp’n, Ex.

15, Email from Wickline to Pl., Feb. 21, 2013 (“2/21/13, 10:43 a.m. Email”), ECF 46-16 at 79.

He also requested a doctor’s note clearing her return to work after her scheduled “procedure.”

Id. The plaintiff and Lee then unsuccessfully attempted to coordinate a date for the assessment,

causing the plaintiff to reach out to Diana Haines-Walton, MPD’s Director of Human Resources,

for assistance and for an update on her telecommuting application. Pl.’s Opp’n, Ex. 15, Email

from Pl. to Haines-Walton, Mar. 4, 2013 (“3/4/13, 12:57 p.m. Email”), ECF No. 46-16 at 77.

Haines-Walton informed the plaintiff and Lee that she recommended “tabl[ing] the

telecommuting reuquest [sic] until after the assessment,” since “the ergonomic assessment will

be taking place shortly.” Pl.’s Opp’n, Ex. 15, Email from Haines-Walton to Pl., Mar. 4, 2013

(“3/4/13, 3:57 p.m. Email”), ECF No. 46-16 at 77. Lee, in turn, informed the plaintiff that he

had reached out to the ergonomist for his availability. Pl.’s Opp’n, Ex. 15, Email from Lee to

Pl., Mar. 4, 2013 (“3/4/13, 5:08 p.m. Email”), ECF No. 46-16 at 76.

One week later, on March 11, 2013, the plaintiff again requested an update and, three

days later, sent another email to Lee, Haines-Walton, and two other MPD officials detailing her

repeated efforts for accommodations and asking Lee to provide her with an update by March 18,

2013. Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee, Mar. 11, 2013 (“3/11/13, 11:10 a.m. Email”),

18 ECF No. 46-16 at 72; Pl.’s Opp’n, Ex. 15, Email from Pl. to Lee, et al., Mar. 14, 2013 (“3/14/13,

9:22 a.m. Email”), ECF No. 46-16 at 71. In response, Haines-Walton stated that the ergonomic

assessment was “imminent” and another MPD official, Jacob Major, notified the plaintiff that

Lee had “sent several e-mails in the last few days informing everyone that the EEO Office was

waiting for the Ergonomist to provide his available dates.” Pl.’s Opp’n, Ex. 15, Email from

Haines-Walton to Pl., Mar. 14, 2013 (“3/14/13, 2:57 p.m. Email”), ECF No. 46-16 at 71; Pl.’s

Opp’n, Ex. 15, Email from Jacob Major to Pl., Mar. 14, 2013 (“3/14/13, 3:21 p.m. Email”), ECF

No. 46-16 at 70–71. Around this time, Matthew Bromeland replaced Raymond Wickline as the

plaintiff’s supervisor. Pl.’s Opp’n, Ex. 15, Email from Bromeland to Pl., Mar. 15, 2013

(“3/15/13, 10:35 a.m. Email”), ECF No. 46-16 at 70.

The plaintiff’s ergonomic assessment was conducted on March 26, 2013. Def.’s SMF

¶ 19 (undisputed); Pl.’s Opp’n, Ex. 25, J. Thomas Pierce Ergonomics Evaluation (“Ergonomic

Evaluation”), ECF No. 47-10 at 3. The ergonomist recommended “a more ergonomically

adjustable chair,” “use of the chair’s arm rests,” and “provision of a foot rest/support.” Id.

According to the plaintiff’s testimony, she received a footstool and an ergonomic keyboard in

April 2013. Pl.’s Dep. at 34. The plaintiff accepted a suitable ergonomic chair from Bromeland

in the summer of 2013. Def.’s SMF ¶ 21 (undisputed).

C. Requests for Accommodations after the Initiation of This Lawsuit

This lawsuit was filed on June 21, 2013. On November 12, 2013, the plaintiff submitted

an “Application to Participate in Telecommuting Program” requesting to telecommute “4 days a

week due to [her] medical condition.” Def.’s Mot., Ex. 17, Application to Participate in

Telecommuting Program (“Nov. 2013 Telecommuting Appl.”), ECF No. 54-1 at 85. The

application indicates that Brandy Cramer agreed to this arrangement on behalf of the plaintiff’s

supervisor, but that approval was still required by the “Agency Head (or designee).” Id. at 86,

19 91. On November 19, 2013, Bromeland allegedly emailed Ms. Pauling “requesting additional

information and clarification” related to her doctor’s note that “recommended four-days-per-

week telecommuting.” Def.’s Mot., Ex. 18, Letter from Bromeland to Donna Rucker & Pl., Mar.

14, 2014 (“Bromeland Letter”), ECF No. 54-1 at 94. 4 According to Bromeland, “the only

reasoning articulated by the physician in support of telecommuting multiple days per week is that

it would allow Ms. Pauling the ability to ‘stand and stretch as needed’; both of which can be

reasonably accommodated at her work location.” Id. at 95. Bromeland recommended that the

plaintiff provide additional justification for her four-day-per-week request, but he noted that he

did not have the authority to grant the plaintiff’s telecommuting application and that only the

Director of Human Resources could do so. Id. Bromeland later stated that he “did not receive a

response to [his] email nor did [he] receive any additional information to attach to Ms. Pauling’s

telecommuting application.” Id.

In March 2014, Bromeland responded to a letter from the plaintiff’s attorney, Donna

Rucker. Id. at 94. In that letter, Bromeland acknowledged the ergonomist’s recommendation

that the plaintiff be provided with a footstool, keyboard tray, and ergonomic chair, and he gave

an update as to all three items. Id. By this time, the plaintiff had received two footstools (one

for each of her workstations) and a keyboard tray. Id. As for the chair, Bromeland restated the

parties’ agreement, from June 25, 2013, that “Ms. Pauling would take the report to her physician

to assist her in selecting the proper chair for her condition since it would be inappropriate for an

individual at MPD to select the chair.” Id. As of March 2014, however, MPD had not received

the plaintiff’s selection of a chair. Id. 5 Bromeland also indicated that he would resubmit the

4 The November 19, 2013, email was not entered into the record, but a later letter from Bromeland sent to the plaintiff and her attorney recounts his statements. See Bromeland Letter, ECF No. 54-1 at 94–96. 5 Elsewhere in the record, the parties agree that “[i]n the summer of 2013, MPD provided Plaintiff with an ergonomic chair, which she accepted.” Def.’s SMF ¶ 21 (undisputed).

20 plaintiff’s request for four-day-per-week telecommuting, despite his “humble opinion that it does

not provide suitable justification or rationale to support her request to telecommute for four days

each week.” Id. at 95.

The plaintiff apparently did not resubmit her request for telecommuting until August 25,

2015, which request was not immediately conveyed to Saray Leon, the ADA coordinator. Def.’s

Mot., Ex. 20, Application to Participate in Telecommuting Program (“Aug. 2015 Telecommuting

Appl.”), ECF No. 54-1 at 100; Pl.’s Opp’n, Ex. 15, Email from Pl. to Leon, Dec. 1, 2015

(“12/1/15, 1:48 p.m. Email”), ECF No. 46-16 at 84; Pl.’s Opp’n, Ex. 15, Email from Leon to Pl.,

Dec. 1, 2015 (“12/1/15, 4:07 p.m. Email”), ECF No. 46-16 at 84. On January 19, 2016, the

plaintiff submitted a Request for Reasonable Accommodation Form to Leon. Def.’s Mot., Ex.

19, Letter from Leon to Pl., May 19, 2016 (“Leon Letter”), ECF No. 54-1 at 98. Shortly

thereafter, on February 16, 2016, the plaintiff’s request for one-day-per-week telecommuting was

approved by her supervisor and the agency head. Aug. 2015 Telecommuting Appl., ECF No. 54-

1 at 106.

On February 29, 2016, the plaintiff and Leon met to “discuss several possible

accommodations.” Leon Letter, ECF No. 54-1 at 98. On April 6, 2016, the plaintiff identified

an ergonomic keyboard and tray for her second workstation, and Leon requested another

ergonomic workstation assessment to measure the plaintiff’s workstation and ensure that the

plaintiff’s requested items would fit. Id.; Pl.’s Opp’n at 15–16. On May 19, 2016, the plaintiff’s

request for a second ergonomic keyboard, keyboard tray, and ergonomic assessment was

approved. Leon Letter, ECF No. 54-1 at 98. A second ergonomic assessment was conducted in

June 2016. Def.’s SMF ¶ 28 (undisputed).

21 D. The Plaintiff’s Absent-Without-Leave Incident in October 2015

Separately from her failure to accommodate claims, the plaintiff alleges that she

“suffered an adverse employment action when she was placed on AWOL [absent without leave]”

status in October 2015. Pl.’s Opp’n at 8. This incident arose on October 8, 2015, when the

plaintiff informed Cramer, her immediate supervisor, that she would “be out today” on sick leave

and provided her timesheet, reflecting sick leave on October 8 and no entry on October 9. Pl.’s

Opp’n, Ex. 2, Email from Pl. to Cramer, Oct. 8, 2015 (“10/8/15, 6:38 a.m. Email”), ECF No. 46-

4 at 1. The next day, Cramer asked the plaintiff to “advise of [her] status” and forwarded that

request to Bromeland. Pl.’s Opp’n, Ex. 6, Email from Cramer to Pl., Oct. 9, 2015 (“10/9/15,

8:34 a.m. Email”), ECF No. 46-8 at 2; Pl.’s Opp’n, Ex. 6, Email from Cramer to Bromeland,

Oct. 9, 2015 (“10/9/15, 11:28 a.m. Email”), ECF No. 46-8 at 1. Cramer told Bromeland that she

“d[id] not recall giving Yolanda leave today” and that the plaintiff “did not report to work today.”

10/9/15, 11:28 a.m. Email, ECF No. 46-8 at 1. Bromeland advised Cramer to “try calling her at

least once.” Pl.’s Opp’n, Ex. 6, Email from Bromeland to Cramer, Oct. 9, 2015 (“10/9/15, 12:13

p.m. Email”), ECF No. 46-8 at 1. Cramer later reported that she spoke to the plaintiff, who

“stated that she thought the policy was she did not need to call everyday she was out” and that

“she thought she said she would be out the rest of the week.” Pl.’s Opp’n, Ex. 6, Email from

Cramer to Bromeland, Oct. 9, 2015 (“10/9/15, 12:19 p.m. Email”), ECF No. 46-8 at 1.

The next week, Cramer advised the plaintiff that she was conducting an investigation

“regarding your unauthorized absence on Friday, October 9th,” and gave the plaintiff an

opportunity to provide a written statement regarding her absence. Pl.’s Opp’n, Ex. 21, Email

from Cramer to Pl., Oct. 14, 2015 (“10/14/15, 12:47 p.m. Email”), ECF No. 47-6 at 1. In

response, the plaintiff sent Cramer a copy of her timesheet reflecting that she took sick leave all

day on October 8 and 9. Pl.’s Opp’n, Ex. 18, Email from Pl. to Cramer, Oct. 16, 2015

22 (“10/16/15, 11:33 a.m. Email”), ECF No. 47-3 at 1. The plaintiff’s pay period detail and relevant

earnings statement reflect that she was listed as “absent without leave” for five hours on October

9, 2015, and that her pay was reduced accordingly. Pl.’s Opp’n, Ex. 11, Pay Period Detail, ECF

No. 46-12 at 1; Pl.’s Opp’n, Ex. 17, Earnings Statement, Oct. 27, 2015 (“Earnings Statement”),

ECF No. 47-2 at 1.

On December 3, 2015, Bromeland had a “Resolution Conference” regarding the issue

with the plaintiff and her union representative, Kayce Simmons, at which the parties were unable

to reach a resolution. Pl.’s Opp’n, Ex. 8, Email from Bromeland to Simmons & Pl., Dec. 15,

2015 (“12/15/15, 6:16 p.m. Email”), ECF No. 48 at 1. On December 15, 2015, Bromeland

proposed, as a penalty for the unannounced absence, a one-day suspension held in abeyance for

twelve months. Id. at 3. It is unclear whether this suspension was ever imposed.

On February 2, 2016, Union President Antonio Reed sent a letter to Commander Jeffrey

Carroll requesting reconsideration of the plaintiff’s designation as “absent without leave” and her

corresponding pay decrease. Pl.’s Opp’n, Ex. 7, Letter from Reed to Carroll, Feb. 2, 2016

(“Reed Letter”), ECF No. 46-9 at 1. Reed noted that “Ms. Pauling immediately acknowledged

her error and took full responsibility for her actions on the day in question,” id., and requested

that MPD “restore Ms. Pauling’s pay for October 9, 2015 and use her sick leave balance for the

day,” id. at 3. It is unclear what action was taken to respond to this request.

E. Other Employees’ Requests for Accommodations

In her Opposition, the plaintiff alleges that “her requests for reasonable accommodations

were treated with lower priority than those of her white counterparts” and that her “white

colleagues who made similar requests during the same period of time[ ] had their requests

honored and processed timely.” Pl.’s Opp’n at 33. The plaintiff provided additional facts

regarding two specific requests from her white colleagues: she alleges that “when Brandy

23 Cramer (white, female), requested two ergonomic chairs, she received them within two or three

months of her request,” id. at 34–35, and that “when Tracey Parker (white, female), requested

that the office be sanitized because Ray Wickline would bring his dog to work and it aggravated

an allergy she had, the entire office was sanitized within a week of her request,” id. at 36. The

plaintiff also claims that several white employees were permitted to telework before the plaintiff

and that they “had no problems, no denial, no nothing of anything,” but she did not offer specific

details about their situations. Pl.’s Dep. at 41–46; see also Pl.’s Opp’n at 35.

Regarding Cramer’s request, the record shows that on or around June 14, 2010, Cramer

sent Haines-Walton a request for reasonable accommodations. Pl.’s Opp’n, Ex. 33, Email from

Haines-Walton to Vaughan-Roach, July 15, 2010 (“7/15/10, 1:50 p.m. Email”), ECF No. 47-18

at 5. Cramer requested an update on that request on July 15, 2010, and in response, Vaughan-

Roach acknowledged Cramer’s doctor’s note and asked her to “use the office supply book to

select a couple of chairs that you feel may meet your needs.” Pl.’s Opp’n, Ex. 33, Email from

Vaughan-Roach to Cramer, July 15, 2010 (“7/15/10, 2:44 p.m. Email”), ECF No. 47-18 at 5. On

July 19, 2010, Cramer identified a specific chair and provided the name, price, product number,

and page of the supply book for that chair. Pl.’s Opp’n, Ex. 33, Email from Cramer to Vaughan-

Roach, July 19, 2010 (“7/19/10, 9:24 a.m. Email”), ECF No. 47-18 at 4. Vaughan-Roach

approved the purchase of a chair the same day and instructed Wickline and Haines-Walton to

order the chair. Pl.’s Opp’n, Ex. 33, Email from Vaughan-Roach to Cramer, July 19, 2010

(“7/19/10, 3:30 p.m. Email”), ECF No. 47-18 at 4.

As to Parker’s request, the record reflects that on April 14, 2011, Parker sent Haines-

Walton a letter from her doctor regarding her allergy to animal dander, noting that exposure to

animal dander would “trigger a serious asthma attack.” Pl.’s Opp’n, Ex. 32, Email from Parker

24 to Haines-Walton, Apr. 14, 2011 (“4/14/11, 5:29 p.m. Email”), ECF No. 47-17 at 3. She

requested that “no personal pets be allowed in the crime analysis office” and that “all of these

affected spaces be cleaned according to common practices/OSHA industry standards associated

with proper dander removal.” Id. A cleaning crew came and sanitized the office on May 6,

2011. Pl.’s Opp’n, Ex. 32, Email from Sean MacCarthy to Wickline, Apr. 29, 2011 (“4/29/11,

6:36 p.m. Email”), ECF No. 47-17 at 1.

F. The Plaintiff’s General Allegations about Her Workplace Environment

In her deposition, the plaintiff proffered several examples of conduct in her workplace

that she claims are indicative of gender discrimination, race discrimination, disability

discrimination, retaliation, and a hostile work environment. As for race discrimination, the

plaintiff testified that “all [her] white coworkers were able to work from home,” Pl.’s Dep. at 42,

and that African-American employees “weren’t able to go to training,” id. at 60. She also

alleged that she once overheard Wickline begin to make a derogatory remark about then-

President Barack Obama, and the plaintiff “started coughing really loud so he would know that I

was there, because he couldn’t finish the whole sentence.” Id. at 61. She further testified that

“[t]here was a swastika picture hanging in front of [Wickline’s] office” and that he and another

male colleague “would be right wing” by doing a salute when walking past it. Id. Finally, the

plaintiff testified that Wickline “caused a friction” between her and another African-American

woman when he “told the young lady that [the plaintiff] did not like African people” and that she

“was a troublemaker and a problematic person and stay away from me.” Id. at 61–62.

Regarding gender discrimination, the plaintiff alleges that while “under Mr. Wickline’s

supervision, Ms. Pauling was exposed to Mr. Wickline using sexist and bigoted language which

included instances in which he referred to women as ‘b—ches’ and ‘c—ts.’” Pl.’s Opp’n at 3;

Pl.’s Dep. at 59. She stated that Wickline “did not like females,” “believed in the all-boy

25 network,” and “did not favor females that were promoted over him.” Pl.’s Dep. at 61. He would

allow the men in the office to “sit and joke around and talk about women, rating them on their

boobs and their looks, the all-boy network.” Id. at 62. She alleged that this language occurred

“pretty much daily” throughout her time under Wickline’s supervision, id. at 67, and that she

complained to Assistant Chief Burke about Wickline’s language on October 4, 2011, and in

January 2013, id. at 69. She also claimed that men were allowed to go to trainings over women.

Id. at 81.

As for disability discrimination, the plaintiff claims that Wickline “would not fill out the

reports timely,” id. at 24, that Wickline was “calling [her] doctors” and “violating [her] HIPPA

right,” id. at 26, that Internal Affairs “decided that they were not going to do the investigation,”

id., and that Vaughan-Roach “kept losing the paperwork” and “would not respond to the doctors

when they called,” id. at 28. She speculated that these delays were also related to her race, her

gender, and retaliation against her for submitting an EEO complaint. Id. at 34. Similarly, the

plaintiff’s evidence of retaliation centers on the delays in processing her requests. Id. at 73–76.

She also alleges that there was “[r]etaliation of me wanting to go to training, retaliation against

data sharing information, being in a hostile work environment, being isolated.” Id. at 77.

G. Litigation History

After this suit was filed in June 2013, the defendant filed a partial motion to dismiss.

That motion sought dismissal of the plaintiff’s DCHRA claims based on improper notice under

D.C. Code § 12-309 and dismissal of the plaintiff’s claims under 42 U.S.C. §§ 1981 and 1983.

Def.’s Partial Mot. Dismiss (“Def.’s Mot. Dismiss”) at 2, ECF No. 16. In its reply brief in

support of that motion, the defendant argued for the first time that the plaintiff’s DCHRA claims

were procedurally barred because “she already pursued an administrative remedy with the D.C.

Office of Human Rights.” Def.’s Reply Partial Mot. Dismiss (“Def.’s Mot. Dismiss Reply”) at

26 2, ECF No. 19. The plaintiff later voluntarily dismissed her claims under §§ 1981 and 1983, and

the defendant’s motion was denied in all other respects. See Pl.’s Notice of Filing (“Pl.’s

Notice”) at 1, ECF No. 22; Order (June 15, 2015) (“Mot. Dismiss Order”) at 2, ECF No. 24. As

relevant to the pending motion, the defendant’s argument that the plaintiff’s DCHRA claims

were procedurally barred was not addressed by the Court because it was “raised for the first time

in a reply brief.” Mot. Dismiss Order at 3. 6

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “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). Summary judgment is properly

granted against a party who, “after adequate time for discovery and upon motion, . . . fails to

make a showing sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). The moving party bears the burden to demonstrate the “absence of a genuine

issue of material fact” in dispute, id. at 323, while the nonmoving party must present specific

facts supported by materials in the record that would be admissible at trial and that could enable

a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477

U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on

summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, ‘a

reasonable jury could return a verdict for the nonmoving party’”) (quoting Liberty Lobby, 477

U.S. at 248); see also Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay

6 This case was reassigned to the undersigned Judge on October 24, 2017.

27 . . . counts for nothing on summary judgment.”) (internal quotation marks omitted); FED. R. CIV.

P. 56(c), (e)(2)–(3).

“Evaluating whether evidence offered at summary judgment is sufficient to send a case to

the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123

(D.C. Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve

genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 134

S. Ct. 1861, 1866 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed,

and all justifiable inferences are to be drawn in his favor,” id. at 1863 (quoting Liberty Lobby,

477 U.S. at 255). Courts must avoid making “credibility determinations or weigh[ing] the

evidence,” since “[c]redibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000) (internal quotation marks

omitted); see also Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015). In

addition, for a factual dispute to be “genuine,” the nonmoving party must establish more than

“[t]he mere existence of a scintilla of evidence in support of [its] position,” Liberty Lobby, 477

U.S. at 252, and cannot rely on “mere allegations” or conclusory statements, see Equal Rights

Ctr. v. Post Props., Inc., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (internal quotation marks

omitted); Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v. Dalton, 164 F.3d

671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); accord FED. R.

CIV. P. 56(e). If “opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should not adopt

that version of the facts for purposes of ruling on a motion for summary judgment.” Lash v.

Lemke, 786 F.3d 1, 6 (D.C. Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The

28 Court is only required to consider the materials explicitly cited by the parties, but may on its own

accord consider “other materials in the record.” FED. R. CIV. P. 56(c)(3).

III. DISCUSSION

The plaintiff raises several claims against her employer, including employment

discrimination on the basis of race, gender, and disability, in violation of Title VII, the ADA, the

Rehabilitation Act, and the DCHRA; retaliation, in violation of Title VII, the ADA, the

Rehabilitation Act, and the DCHRA; hostile work environment, in violation of Title VII, the

ADA, the Rehabilitation Act, and the DCHRA; and failure to accommodate, in violation of the

ADA, the Rehabilitation Act, and the DCHRA. After first addressing the plaintiff’s DCHRA

claims, the federal claims are taken in turn.

A. The Plaintiff’s DCHRA Claims Are Procedurally Barred

The defendant first argued that the plaintiff’s DCHRA claims are procedurally barred in

its reply supporting its partial motion to dismiss. See Def.’s Mot. Dismiss Reply at 2.

Accordingly, that argument was rejected given the “well established” principle “that district

courts need not—and indeed, generally should not—consider arguments raised for the first time

in a reply brief” so as to afford the opposing party ample time to respond to the arguments

against it. Mot. Dismiss Order at 3. In the pending motion, the defendant renews this argument.

Under District of Columbia law, “[a]ny person claiming to be aggrieved by an unlawful

discriminatory practice shall have a cause of action in any court of competent jurisdiction for

damages and such other remedies as may be appropriate, unless such person has filed a

complaint” with the District’s Office of Human Rights. D.C. Code. Ann. § 2-1403.16(a). Thus,

individuals bringing DCHRA claims are “offered two possible paths to redress: they may file a

complaint either in court or with OHR. In general, they cannot do both.” Elzeneiny v. District of

Columbia, 125 F. Supp. 3d 18, 32 (D.D.C. 2015) (internal citations omitted). “Indeed, once a

29 plaintiff files a complaint with OHR, she may only file an independent suit in two narrow

instances: if OHR dismissed the case on administrative convenience or if the individual

withdrew her OHR complaint before a probable-cause determination was rendered.” Id. at 33;

see also Carter v. District of Columbia, 980 A.2d 1217, 1223 (D.C. 2009) (“[T]he jurisdiction of

the court and OHR are mutually exclusive in the first instance. Thus, where one opts to file with

OHR, he or she generally may not also file a complaint in court.”) (internal quotation marks

omitted).

It is undisputed that the plaintiff filed a complaint with OHR on December 30, 2010, that

the plaintiff did not withdraw that complaint, and that OHR issued its final decision on that

complaint on January 3, 2012. See Def.’s SMF ¶¶ 1–2 (undisputed); Def.’s Mem. Supp. Mot.

Summ. J. (“Def.’s Mem.”) at 9, ECF No. 43-1; Pl.’s Opp’n at 63–64. The plaintiff nevertheless

maintains that the defendant has forfeited any challenge to the DCHRA claims as procedurally

barred because according to the plaintiff, this challenge amounts to “an assertion that Plaintiff

has brought forth a claim upon which the Court cannot grant her a relief,” which, pursuant to

Federal Rule of Civil Procedure 12(h)(2), was required to be raised in a motion to dismiss. Pl.’s

Opp’n at 64. The plaintiff is mistaken, for two reasons.

First, the plaintiff is incorrect that the defendant’s challenge is one that needed to be

raised in a motion to dismiss. Instead, this challenge addresses the Court’s power to consider the

plaintiff’s DCHRA claims, and was initially raised as such. Def.’s Reply Mot. Dismiss at 3.

Such claims may be raised at any time during the litigation, and “[i]f the court determines at any

time that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P.

12(h)(3). Given the undisputed facts that the plaintiff elected to file an OHR complaint and that

30 OHR issued a final determination on that complaint, the plaintiff cannot now seek to pursue

those same claims in federal district court.

Moreover, the plaintiff’s argument ignores the fact that any concern about the timing of

raising this challenge during briefing on the defendant’s Motion to Dismiss is no longer present.

This jurisdictional argument was previously rejected in order to give the plaintiff time to

consider and respond to the defendant’s position, raised for the first time in a reply brief. The

cases cited by the Court expressly reference the concern that arguments raised for the first time

in reply briefs deprive the opposing party of adequate time to consider all the arguments raised

against it. Mot. Dismiss Order at 3 (citing Performance Contracting, Inc. v. Rapid Response

Const., Inc., 267 F.R.D. 422, 425 (D.D.C. 2010) (“As a general matter, it is improper for a party

to raise new arguments in a reply brief because it deprives the opposing party of an opportunity

to respond to them, and courts may disregard any such arguments.”); Herbert v. Nat’l Acad. of

Scis., 974 F.2d 192, 196 (D.C. Cir. 1992) (refusing “to entertain arguments raised for the first

time in an appellant’s reply brief” because considering such arguments “would be manifestly

unfair” to the opposing party and would deprive the court of the benefit of “the adversarial

process for sharpening the issues for decision”)). In the pending motion, this procedural issue

has been squarely raised by the defendant and responded to by the plaintiff and, accordingly, is

properly before the Court. See Def.’s Mem. at 10–12; Pl.’s Opp’n at 63–64. Summary judgment

is therefore granted to the defendant on all of the plaintiff’s DCHRA claims. The remaining

federal claims are next considered in turn.

B. Counts I, III, and V: Employment Discrimination on the Basis of Race, Gender, and Disability

The plaintiff first claims she was the victim of employment discrimination on the basis of

race, gender, and disability. These claims must be rejected because the plaintiff has not

31 established that she suffered an adverse employment action, let alone that such actions were the

result of discriminatory animus.

1. The Plaintiff Has Not Established a Prima Facie Case of Employment Discrimination on the Basis of Race, Gender, or Disability

In a case involving no direct evidence of discrimination, the court is guided in its analysis

of circumstantial evidence by the familiar burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), which also applies to claims under the

ADA and the Rehabilitation Act, see Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir.

1998) (en banc) (noting that the McDonnell Douglas framework applies to both ADA and

Rehabilitation Act claims); Giles v. Transit Emps. Fed. Credit Union, 794 F.3d 1, 5 (D.C. Cir.

2015). Under the McDonnell Douglas framework, the plaintiff has the burden to establish a

prima facie case of discrimination by showing that “(1) she is a member of a protected class;

(2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an

inference of discrimination.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting

Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).

Critical to this case is whether the plaintiff suffered an adverse employment action. An

“adverse employment action” is “a significant change in employment status, such as hiring,

firing, failing to promote, reassignment with significantly different responsibilities, or a decision

causing significant change in benefits.” Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C. Cir.

2011) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009)); see also Stewart v.

Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (“[An] [a]dverse employment action . . . [entails a]

tangible employment action evidenced by firing, failing to promote, a considerable change in

benefits, or reassignment with significantly different responsibilities.” (internal quotation marks

omitted)). An adverse employment action occurs if an employee “experiences materially

32 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 v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). “[N]ot everything that makes

an employee unhappy,” however, “is an actionable adverse action.” Baird, 662 F.3d at 1250

(quoting Douglas, 559 F.3d at 552). Courts have routinely recognized the difference between

“purely subjective injuries” on the one hand and “objectively tangible harm” on the other. See,

e.g., Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (internal quotation marks omitted).

Adverse employment actions must be “significant” and “tangible,” and, thus, the Supreme Court

has recognized that “in most cases [adverse employment actions] inflict[ ] direct economic

harm.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–62 (1998). As a result, “[c]ourts

applying Title VII have consistently focused on ‘ultimate employment decisions such as hiring,

granting leave, discharging, promoting, and compensating . . . [and not] interlocutory or mediate

decisions having no immediate effect upon employment conditions.’” Taylor v. FDIC, 132 F.3d

753, 764 (D.C. Cir. 1997) (quoting Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (en banc).

According to the plaintiff, she suffered adverse employment actions in the form of her

“denial of promotions and pay raises,” “placement on absent-without-leave status,” “denial of

training opportunities,” “denial of office equipment, which forced Ms. Pauling to take annual

leave,” and “denial of the opportunity to telework, which also forced Ms. Pauling to take annual

leave.” Pl.’s Opp’n at 23; see also id. at 41, 43, 48–49. None of these actions, however, is “a

significant change in employment status,” Baird, 662 F.3d at 1248 (internal quotation marks

omitted), that caused the plaintiff to “experience[ ] materially adverse consequences.” Forkkio,

306 F.3d at 1131.

33 As for the alleged denial of promotions and pay raises, the plaintiff has not identified any

specific promotion or pay raise that she applied for and did not receive. To the contrary, the

plaintiff’s own briefing and evidence makes clear that in August 2010, shortly after she had filed

her internal EEO complaint, she “was promoted from a Grade 11, Step 3 to a Grade 12, Step 1 as

a result of her stellar performance,” and that “[i]n 2012, Ms. Pauling was promoted to a Senior

Crime Analyst position.” Pl.’s Opp’n at 1; see also Pl.’s Dep. at 77–79. The record thus belies

any claim that she was denied promotions or raises.

Regarding her placement on “absent without leave” status for five hours on October 9,

2015, the plaintiff has not explained how this action amounts to “a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing significant change in benefits.” Baird, 662 F.3d

at 1248 (internal quotation marks omitted). The plaintiff does not allege that this action affected

her working conditions, work performance, benefits, or responsibilities. See Pl.’s Opp’n at 41.

Moreover, the plaintiff’s evidence makes clear that this designation was noted because of her

failure to notify her supervisor that she was taking sick leave and, according to her union

representative, the plaintiff “immediately acknowledged her error and took full responsibility for

her actions on the day in question.” Reed Letter, ECF No. 46-9 at 1. In these circumstances, the

plaintiff’s placement on absent-without-leave status for five hours on a date nearly two years into

this litigation does not amount to an adverse employment action.

Next, the mere denial of training opportunities does not constitute an adverse

employment action. See, e.g., Dorns v. Geithner, 692 F. Supp. 2d 119, 133 (D.D.C. 2010)

(finding that the denial of the plaintiff’s request to attend four training courses was not an

adverse employment action); Lester v. Natsios, 290 F. Supp. 2d 11, 29 (D.D.C. 2003) (finding

34 that the denial of training was not an adverse employment action where it did not “affect[ ] some

material change in [the plaintiff’s] employment conditions, status or benefits”). To rise to the

level of an adverse employment action, the denial of a training opportunity must result in an

objectively tangible harm that has “a discernible, as opposed to a speculative, effect on the terms,

conditions, or privileges of one's employment.” Edwards v. EPA, 456 F. Supp. 2d 72, 86

(D.D.C. 2006). Here, the plaintiff has not introduced any evidence of which trainings she was

denied, how many trainings are at issue, the topics addressed at these trainings, and how the

denial of those trainings affected her employment or employment prospects in any objectively

tangible way. Instead, she conclusively asserts that the “denial of training opportunities

materially affected the terms, conditions, and privileges of her employment.” Pl.’s Opp’n at 7.

Without more, this denial does not amount to an adverse employment action.

Finally, regarding the denial of equipment and telecommuting privileges, the plaintiff

undisputedly did eventually receive both the requested ergonomic equipment and the right to

telecommute. See Def.’s SMF ¶¶ 21–22 (undisputed); Pl.’s Dep. at 34–35. While a delay in

satisfying these requests might be cognizable as a failure-to-accommodate claim, that delay does

not amount to a “significant change” in the plaintiff’s employment status and, therefore, is not

actionable as an adverse action supporting a discrimination claim. See Ellerth, 524 U.S. at 761.

Similarly, the fact that these denials required the plaintiff to take annual leave does not, standing

alone, materially alter the terms and conditions of the plaintiff’s employment and more closely

resembles an “interlocutory or mediate decision[ ] having no immediate effect upon employment

conditions.” Taylor, 132 F.3d at 761. The plaintiff does not allege that any requested leave was

denied, an action that is more likely to rise to the level of an adverse action. Accordingly,

35 because the plaintiff has not shown that she suffered any adverse employment action, her claims

must be rejected.

2. The Plaintiff Has Not Established That MPD’s Reasons for Any Adverse Employment Action Were Pretext for Discrimination on the Basis of Race, Gender, or Disability

Even assuming that the plaintiff had, in fact, suffered an adverse employment action, the

plaintiff would fare no better. If the plaintiff had succeeded in establishing a prima facie case,

the burden would then shift to the employer “to articulate some legitimate, nondiscriminatory

reason” for its actions. McDonnell Douglas, 411 U.S. at 802. If the employer establishes a

legitimate, nondiscriminatory reason, “the burden-shifting framework disappears, and a court

reviewing summary judgment looks to whether a reasonable jury could infer intentional

discrimination . . . from all the evidence.” Carter v. George Wash. Univ., 387 F.3d 872, 878

(D.C. Cir. 2004). In such a case, the court “must resolve one central question,” namely, whether

“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 a prohibited basis. Brady v. Office of Sergeant at Arms,

520 F.3d 490, 494 (D.C. Cir. 2008).

In resolving this central question, courts look to, inter alia, “(1) the plaintiff’s prima facie

case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation for its

actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such

as independent evidence of discriminatory statements or attitudes on the part of the employer).”

Hampton v. Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012) (internal quotation marks omitted).

While the plaintiff need not “submit evidence over and above rebutting the employer’s stated

explanation in order to avoid summary judgment,” Hamilton v. Geithner, 666 F.3d 1344, 1351

(D.C. Cir. 2012) (internal quotation marks omitted), the plaintiff must do more than merely state

36 a disagreement with, or disbelief of, the explanation to satisfy the burden of showing that a

reasonable jury could find that the employer’s asserted reason was not the actual reason and that

the employer intentionally discriminated against the plaintiff on a prohibited basis.

To “support an inference that the employer’s stated reasons were pretextual, and the real

reasons were prohibited discrimination or retaliation, [a plaintiff may cite] the employer’s better

treatment of similarly situated employees outside the plaintiff’s protected group, its inconsistent

or dishonest explanations, its deviation from established procedures or criteria, or the employer’s

pattern of poor treatment of other employees in the same protected group as the plaintiff, or other

relevant evidence that a jury could reasonably conclude evinces an illicit motive.” Walker v.

Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (citing Brady, 520 F.3d at 495 & n.3). To

survive summary judgment based solely on evidence of pretext, however, a plaintiff must

demonstrate that a “reasonable jury not only could disbelieve the employer’s reasons, but also

could conclude that the employer acted, at least in part, for a prohibited reason.” Id. at 1096.

In this case, the only actions that could conceivably be construed as adverse employment

actions are the plaintiff’s placement on absent-without-leave status, the denial of ergonomic

equipment, and the denial of telecommuting privileges—but the defendant has offered

legitimate, nondiscriminatory reasons for those actions. 7 First, the defendant stated the plaintiff

was placed on absent-without-leave status because she “failed to report to work for over four

hours of her scheduled workday without notifying her supervisor.” Def.’s Reply Supp. Mot.

Summ. J. (“Def.’s Reply”) at 10, ECF No. 51. The defendant further proffered that the delay in

providing ergonomic equipment was due to the fact that “Plaintiff was asked several times to

7 The plaintiff has offered no evidence of any promotions, raises, or trainings that she sought but was denied. Accordingly, the burden of proof never shifted to the defendant to offer legitimate, nondiscriminatory reasons for those alleged actions. See McDonnell Douglas, 411 U.S. at 802.

37 select a specific ergonomic chair and other workstation equipment” and delayed in identifying

specific equipment. Id. at 9. Finally, the delay in granting telecommuting privileges was

explained by the fact that she “did not submit a telecommuting application until 2013, and she

failed to revise that request in response to feedback from her supervisor that he feared the

application was inadequate to justify the request.” Id.

The plaintiff has not established that these reasons were pretext for discrimination on the

basis of race, gender, or disability. She first attempts to rebut those reasons by claiming that

white employees who requested ergonomic equipment and telecommuting privileges were

accommodated relatively quickly. Pl.’s Opp’n at 33–34. As discussed above, however, the

plaintiff has provided no details regarding the coworkers that were permitted to telecommute

beyond her own assertion that these individuals “had no problems, no denial, no nothing of

anything.” Pl.’s Dep. at 46. Without more details on the specific circumstances of those

individuals and their requests, there is no “relevant evidence that a jury could reasonably

conclude evinces an illicit motive.” Walker, 798 F.3d at 1092. The only specific evidence

proffered by the plaintiff regarding her coworkers relates to Brandy Cramer’s request for an

ergonomic chair and Tracy Parker’s request that the office be sanitized after Wickline brought

his dog to work. Pl.’s Dep. at 41–42; Pl.’s Opp’n at 34–36. In those cases, however, the record

reflects that, unlike the plaintiff, both Cramer and Parker promptly provided doctors’ notes and

identified the specific accommodations they were requesting—the exact product name and

number of a chair, in Cramer’s case, and sanitization of a specific area, in Parker’s case. See

supra, Part I.E; 7/15/10, 2:44 p.m. Email, ECF No. 47-18 at 5; 7/19/10, 9:24 a.m. Email, ECF

No. 47-18 at 4; 4/14/11, 5:29 p.m. Email, ECF No. 47-17 at 3. Given these facts, a reasonable

38 jury would be unable to conclude that the employer’s stated reasons were pretext for

discrimination.

The plaintiff also challenges the stated legitimate, nondiscriminatory reasons by

proffering “independent evidence of discriminatory statements or attitudes on the part of the

employer.” Hampton, 685 F.3d at 1100 (internal quotation marks omitted). Specifically, the

plaintiff alleges that she “was the target of male micro-aggressions,” Pl.’s Opp’n at 25, and that

her supervisor showed “outward disdain and disrespect towards women,” id. at 26, “would make

derogatory statements about other female officials or managers,” id., “would make jokes around

the office about ‘right wing power,’” id. at 32, “had a swastika picture posted on his outer office

window,” id., and “made reference to former U.S. President Barack Obama as a ‘black son of a

—,” id. The plaintiff does not identify any statements made by her supervisor that show disdain

for disabled people. The plaintiff also does not provide any details about when these statements

occurred, other than a blanket assertion that they occurred “pretty much daily,” Pl.’s Dep. at 67.

The proffered statements, while troubling and unprofessional, do not appear to have any relation

to the adverse employment actions at issue, if any, and are too “vague” and “conclusory” to

avoid summary judgment. See Johnson v. Perez, 823 F.3d 701, 710 (D.C. Cir. 2016).

Thus, even if the delay in the provision of equipment and telecommuting privileges did

amount to an adverse employment action, the plaintiff has not carried her burden of establishing

that the legitimate, nondiscriminatory reasons proffered by the defendant were pretext for race,

gender, or disability discrimination.

C. Count II: Retaliation

The plaintiff next claims that she suffered “adverse retaliatory actions” that were “a direct

result of Plaintiff having previously engaged in protected EEO activity.” Compl. ¶ 104. The

legal framework for demonstrating retaliation under Title VII is similar to the framework for

39 establishing discrimination, which also applies to retaliation claims under the ADA and the

Rehabilitation Act. See Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005)

(adopting the Title VII retaliation standard for ADA retaliation cases); Minter v. District of

Columbia, 809 F.3d 66, 69 (D.C. Cir. 2015) (noting that the Rehabilitation Act incorporates the

standards used to evaluate ADA claims). Thus, a prima facie case of retaliation requires a

plaintiff to show that “(1) [s]he engaged in protected activity; (2) [s]he was subjected to an

adverse employment action; and (3) there was a causal link between the protected activity and

the adverse action.” Hamilton, 666 F.3d at 1357 (quoting Woodruff v. Peters, 482 F.3d 521, 529

(D.C. Cir. 2007)); Wiley, 511 F.3d at 155. Again, “[o]nce the plaintiff has made a prima facie

case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason

for the challenged employment action.” Bright v. Copps, 828 F. Supp. 2d 130, 142 (D.D.C.

2011) (internal quotation marks and alteration omitted).

The defendant does not dispute that the plaintiff engaged in a protected activity by filing

an EEO complaint. See Def.’s Mem. at 20. Hence, the critical questions are whether the

plaintiff was subjected to an adverse employment action and, if so, whether a causal connection

between the protected activity and the alleged adverse action is present. In the retaliation

context, adverse actions are “not limited to discriminatory actions that affect the terms and

conditions of employment,” but instead reach any harm that “well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Baird, 662 F.3d at

1249 (quoting Burlington N. & Santa Fe Ry. Co. v. White (“Burlington”), 548 U.S. 53, 64, 68

(2006)). Such actions include harms that may not be strictly workplace- or employment-related,

so long as “a reasonable employee would have found the challenged action materially adverse.”

Burlington, 548 U.S. at 68. Nevertheless, “trivial harms,” “petty slights,” and “minor

40 annoyances” do not rise to the level of adverse employment actions, even under the broader

retaliation standard. Id.

In support of her retaliation claim, the plaintiff states that the “adverse actions in the

record that Ms. Pauling testifies to are the denial of promotions and pay raises; her placement on

absent-without-leave status (‘AWOL’); the denial of office equipment, which forced Ms. Pauling

to take annual leave, which is an objectively tangible harm; and denial of the opportunity to

telework, which also forced Ms. Pauling to take annual leave, which is an objectively tangible

harm.” Pl.’s Opp’n at 41. Elsewhere in her brief, the plaintiff also states that she “was ignored

by and suffered silent treatment from her supervisor, her assignments have been removed and

given to a white, male colleague, she had her training requests denied, and she was given a feces

stained chair.” Id. at 40. Even under the broader definition of adverse actions in the retaliation

context, several of the plaintiff’s contentions can be flatly rejected. As discussed, the plaintiff’s

claims of denied promotions and raises lack merit given her multiple promotions and raises, even

after she engaged in protected activity. See Pl.’s Opp’n at 1; Def.’s SMF ¶ 4 (undisputed).

Similarly, although there was a delay in providing the plaintiff with ergonomic equipment and

telecommuting privileges, it is undisputed that she eventually received those benefits, even after

filing an OHR complaint and initiating this lawsuit. See Def.’s SMF ¶¶ 19, 21, 25, 27–28

(undisputed). As for the “silent treatment” the plaintiff claims to have suffered, she admits

elsewhere in her brief that “she does not allege that the isolation she experienced was an adverse

action.” Pl.’s Opp’n at 41. Finally, the plaintiff offers no evidence of which assignments of hers

were taken away and given to white, male colleagues or when, and has provided no reason to

believe that any such reassignment would amount to anything more than a “petty slight[ ]” or a

“trivial harm[ ].” Burlington, 548 U.S. at 68.

41 The plaintiff’s best examples of potentially retaliatory actions are her placement on

AWOL status and the provision of an allegedly feces-stained chair. Even assuming that these

actions amount to materially adverse actions, however, the plaintiff has not established a causal

link between her protected activity and these actions. See Hamilton, 666 F.3d at 1357–58. As

for the AWOL incident, as discussed above, the record evidence establishes that this action was

taken due to the plaintiff’s failure to communicate regarding her absence on October 9, 2015.

See supra Part III.B.2. The statements provided by Bromeland and Cramer indicate that they had

no knowledge of her whereabouts, and even a statement from the plaintiff’s union president

indicates that the plaintiff “immediately acknowledged her error and took full responsibility for

her actions on the day in question.” Reed Letter, ECF No. 46-9 at 1.

Similarly, the record evidence surrounding the soiled chair does not provide any

indication that the chair was provided as retaliation. The plaintiff testified that she rejected the

first chair because it “had feces on it,” Pl.’s Dep. at 35, and that she rejected the second chair

because, although she “didn’t observe” feces on it, the chair had previously been used by an

unhygienic coworker, id. at 90–94. Even assuming the veracity of the plaintiff’s claims,

however, she has failed to offer any evidence of a causal link between Wickline’s provision of

these chairs and her protected activity. The plaintiff’s testimony indicates only that Wickline

laughed while he was giving her the first chair and said, “Well, if you take this chair, you’ve just

got to clean it off.” Pl.’s Dep. at 35. When Wickline gave her the second chair, he allegedly

said, “Here’s a chair. Let me give this to you.” Id. at 36. These statements do not evince any

retaliatory intent, and therefore fail to provide the requisite “proof that the desire to retaliate was

the but-for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar,

133 S. Ct. 2517, 2528 (2013).

42 Moreover, the chairs were provided to the plaintiff in November 2010, after the plaintiff

had lodged an internal EEO complaint in June 2010 but before she had filed her OHR complaint

or initiated this lawsuit. The lack of temporal proximity between the provision of the chairs and

the plaintiff’s protected activity—five months—is therefore insufficient to show a causal

connection as required by Title VII. See, e.g., Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268,

273 (2001) (noting that a three- or four-month period between protected activity and an adverse

action is insufficient to show a causal connection); Hamilton, 666 F.3d at 1357 (“[T]emporal

proximity can indeed support an inference of causation, but only where the two events are very

close in time.”) (internal quotation marks omitted). Without any evidence linking the provision

of the soiled chairs to the plaintiff’s protected activity, the plaintiff’s retaliation claim must fail.

D. Count IV: Hostile Work Environment

The plaintiff next claims that she was subjected to a hostile work environment. A

plaintiff may prevail on a hostile work environment claim if she can show that her employer

subjected her to “discriminatory intimidation, ridicule, and insult” that was “sufficiently severe

or pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (quoting Harris

v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). “To determine whether a hostile work

environment exists, the court looks 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.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)

(citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)); see also Singletary v.

District of Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003). The Supreme Court in Harris

explained that assessing whether a hostile work environment exists has both subjective and

objective components. Thus, no violation can be shown “if the victim does not subjectively

43 perceive the environment to be abusive” and also if the conduct “is not severe or pervasive

enough to create an objectively hostile or abusive work environment.” Harris, 510 U.S. at 21.

Further, “a plaintiff may not combine discrete acts to form a hostile work environment claim

without meeting the required hostile work environment standard.” Baird, 662 F.3d at 1252.

In evaluating claims of a hostile work environment, the D. C. Circuit has cautioned that

“not all abusive behavior, even when it is motivated by discriminatory animus, is actionable.”

Stewart v. Evans, 275 F.3d 1126, 1133 (D.C. Cir. 2002) (internal quotation marks omitted).

Rather, there must be a “linkage between the hostile behavior and the plaintiff’s membership in a

protected class for a hostile work environment claim to proceed.” Douglas-Slade v. LaHood,

793 F. Supp. 2d 82, 101 (D.D.C. 2011) (internal quotation marks omitted). The Supreme Court

has made it clear that Title VII does not establish a “general civility code for the American

workplace,” and that “Title VII does not prohibit all verbal or physical harassment in the

workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). In other words,

“simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not

amount to” a hostile work environment. Faragher, 524 U.S. at 788 (internal quotation marks

and citation omitted); see also EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315–16 (4th Cir.

2008) (noting that complaints about mere rude treatment, callous behavior, routine difference of

opinion, and personality conflict do not satisfy the severe or pervasive standard of a hostile work

environment claim under Title VII). To “prevent[ ] Title VII from expanding into a general

civility code,” the “crucial” requirement for a hostile work environment claim is that the

behavior complained of is “so objectively offensive as to alter the conditions of the victim’s

employment.” Oncale, 523 U.S. at 81 (internal quotation marks omitted); see also Faragher,

524 U.S. at 788 (“[C]onduct must be extreme to amount to a change in the terms and conditions

44 of employment.”). “Bosses may be harsh, unfair and rude, but conduct so characterized does not

necessarily rise to the level of a Title VII violation.” Peters v. District of Columbia, 873 F.

Supp. 2d 158, 188 (D.D.C. 2012).

In support of her hostile-work-environment claim, the plaintiff states that her supervisor,

Wickline, “consistently walked around the office throwing tantrums, yelling ‘that b*tch’ in

reference to Assistant Chief Diane Grooms who is a woman in upper management at MPD, and

[ ] permitted the white males in the office to act with reckless abandon and no consequences.”

Pl.’s Opp’n at 60. She further alleges that “[g]iven the good ole’ boy culture at MPD, white

male colleagues of Ms. Pauling have been provided free reign to pass around lewd photos of

women and outwardly and explicitly comment on their body parts; [and] hang a swastika in the

office.” Id. Notably, however, the plaintiff offers no evidence that this conduct altered or

interfered with the conditions of her employment, and on its own, this conduct is not

“sufficiently severe or pervasive to . . . create an abusive working environment.” Harris, 510

U.S. at 21; see also Ayissi-Etoh, 712 F.3d at 577; Baloch, 550 F.3d at 1201. Indeed, far more

egregious conduct has failed that test. See, e.g., Baloch, 550 F.3d at 1195, 1201 (concluding that

an employer’s threat to have the plaintiff “arrested, led out of the building in handcuffs, and

jailed,” among other verbal altercations, did not amount to a hostile work environment); Vickers

v. Powell, 493 F.3d 186, 198–201 (D.C. Cir. 2007) (concluding that a hostile work environment

was not created by a supervisor’s “angry threats” and derogatory comments about minorities);

Stewart, 275 F.3d at 1131–33 (holding that a phone call in which a higher-ranked official called

the plaintiff “a fucking idiot,” among other slurs and profanities, did not create a hostile work

environment); Peters, 873 F. Supp. 2d at 190 (finding that an employer who “screamed at, talked

down to,” “pointed her finger” at, “made intimidating comments” to, and “physically blocked”

45 the plaintiff did not amount to a hostile work environment); Hampton v. Vilsack, 760 F. Supp. 2d

38, 51, 56 (D.D.C. 2011) (finding that a supervisor’s comments that plaintiff “had skill sets that

[he] should not have because if [his] race” and that the plaintiff acted like he was “a nigger from

California instead of a nigger from Mississippi” were not sufficiently severe to constitute a

hostile work environment).

The plaintiff has cited only isolated statements, none of which was directed at her, to

establish her claim, but these statements were “mere offensive utterance[s]” that are not

“sufficiently hostile or abusive” to avoid summary judgment. Faragher, 524 U.S. at 787–88

(internal quotation marks omitted). Indeed, the plaintiff cites precisely the type of complaints

that Title VII’s demanding standard is meant to “filter out”: “complaints attacking the ordinary

tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes,

and occasional teasing.” Id. at 788 (internal quotation marks omitted). In the absence of any

evidence that Wickline’s statements “change[d] [ ] the terms and conditions of [her] employment

or “unreasonably interfere[d] with [the plaintiff’s] work performance,” id. (internal quotation

marks omitted), her claim of a hostile work environment must be rejected.

E. Count VI: Failure to Accommodate

Finally, the plaintiff alleges that the defendant failed to provide a reasonable

accommodation of her disability in violation of the ADA and the Rehabilitation Act. Compl.

¶¶ 166–78. 8 The ADA and the Rehabilitation Act prohibit federal agencies from discriminating

against disabled individuals and require agencies to “mak[e] reasonable accommodations to the

known physical or mental limitations of an otherwise qualified individual with a disability who is

8 The standards used to determine whether the Rehabilitation Act has been violated in a complaint alleging employment discrimination under that Act are the same standards applied in evaluating similar claims under the ADA. See 29 U.S.C. § 794(b); Minter, 809 F.3d at 69. Accordingly, references to the plaintiff’s Rehabilitation Act claims also incorporate her ADA claims, even if not expressly mentioned.

46 an applicant or employee, unless [the employer] can demonstrate that the accommodation would

impose an undue hardship.” Adams v. Rice, 531 F.3d 936, 943 (D.C. Cir. 2008) (quoting 42

U.S.C. § 12112(b)(5)(A)) (alterations in original); see also Taylor v. Rice, 451 F.3d 898, 905

(D.C. Cir. 2006); Klute v. Shinseki, 840 F. Supp. 2d 209, 215 (D.D.C. 2012) (quoting Nurriddin

v. Bolden, 674 F. Supp. 2d 64, 82 (D.D.C. 2009)). To survive summary judgment on a failure to

accommodate claim, a plaintiff must “come forward with sufficient evidence to allow a

reasonable jury to conclude that” she meets four elements: “(i) she was disabled within the

meaning of the Rehabilitation Act; (ii) her employer had notice of her disability; (iii) she was

able to perform the essential functions of her job with or without reasonable accommodation; and

(iv) her employer denied her request for a reasonable accommodation of that disability.”

Solomon v. Vilsack, 763 F.3d 1, 9 (D.C. Cir. 2014) (internal citations omitted); Doak v. Johnson,

798 F.3d 1096, 1105 (D.C. Cir. 2015); Smith v. Lynch, 106 F. Supp. 3d 20, 39 (D.D.C. 2015).

Notably, “‘an employer is not required to provide an employee that accommodation [s]he

requests or prefers, the employer need only provide some reasonable accommodation.’” Aka,

156 F.3d at 1305 (internal quotation marks and alterations omitted).

Here, only the fourth element—whether the employer denied the plaintiff’s request for a

reasonable accommodation—is at issue. See Def.’s Mem. at 21–22. To determine an

appropriate reasonable accommodation, the agency should “initiate an informal, interactive

process with the qualified individual with a disability in need of the accommodation.” 29 C.F.R.

§ 1630.2(o)(3); see also Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (“The process

contemplated is ‘a flexible give-and-take’ between employer and employee ‘so that together they

can determine what accommodation would enable the employee to continue working.’”) (quoting

EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005). “[N]either party should be

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

liability.” Ward, 762 F.3d at 32 (quoting Sears, 417 F.3d at 805) (alteration in original). Thus,

on summary judgment, courts are instructed to scour the record, see Alexander v. Wash. Metro.

Area Transit Auth., 826 F.3d 544, 548–49 (D.C. Cir. 2016) (per curiam), to “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,” Ward, 762 F.3d at

32 (quoting Sears, 417 F.3d at 805). “In sum, to establish that her request was ‘denied,’ [the

plaintiff] must show either that the [employer] in fact ended the interactive process or that it

participated in the process in bad faith.” Ward, 762 F.3d at 32.

Here, the plaintiff does not dispute that she eventually received her requested

accommodations. See Def.’s SMF ¶¶ 19, 21, 25, 27–28 (undisputed). Her chief complaint is

that MPD “was unwilling to assist Plaintiff in receiving her reasonable accommodation,” Compl.

¶ 172, and that MPD “failed to engage in the interactive process,” Pl.’s Opp’n at 53. The history

of plaintiff’s requests for accommodations and the defendant’s various responses, as described

supra in Part I.A–C, is lengthy. That saga, while protracted, does not show that the defendant

“fail[ed] to participate in good faith” or failed “to make reasonable efforts to help [the plaintiff]

determine what specific accommodations are necessary.” Ward, 762 F.3d at 32 (internal

quotation marks omitted). Nor does the record reveal that the defendant “ended the interactive

process.” Id. Rather, the defendant appears to have repeatedly attempted to assist the plaintiff

with her accommodations by requesting clarification and by informing her of the proper process

by which to request her accommodations. See, e.g., 5/10/10, 10:40 a.m. Email, ECF No. 54-1 at

48 (Wickline informing the plaintiff that “[a]ll plans to work from home must be approved by the

supervisor ahead of time”); 6/25/10, 10:22 a.m. Email, ECF No. 54-1 at 68 (Lee informing the

48 plaintiff that an ergonomic assessment was “[her] responsibility to obtain”); 7/16/10, 10:38 a.m.

Email, ECF No. 46-16 at 47 (Lee asking the plaintiff to fill out a Reasonable Accommodation

Request Form “in order to accurately determine what accommodations are needed per your

physician’s direction”); 6/11/12, 5:29 p.m. Email, ECF No. 46-16 at 67 (Lee instructing the

plaintiff to “contact Captain Lamont Coleman, the Telecommuting Coordinator, to ascertain the

appropriate documentation/forms to begin a telecommuting/‘work from home’ program”).

On multiple other occasions, MPD employees informed the plaintiff that they were

waiting for her to provide necessary information before proceeding with her requests. See, e.g.,

5/10/10, 10:40 a.m. Email, ECF No. 54-1 at 48 (Wickline informing the plaintiff that he was

waiting for forms from her, as well as a copy of her prescription for an ergonomic chair);

5/11/10, 6:38 a.m. Email, ECF No. 54-1 at 50 (Wickline noting that he was waiting for an

indication “of when you plan to return to work,” “[a] copy of a Doctor’s note clearing you to

return to work,” and a plan for what she would accomplish while working from home); 6/11/10,

4:15 p.m. Email, ECF No. 47-21 at 1 (Crane informing the plaintiff that he was waiting for “a

doctor’s note specifying what equipment is needed as well as appropriate worker’s comp

paperwork clearing the return to work”); 6/25/10, 10:32 a.m. Email, ECF No. 54-1 at 67 (Lee

noting that he was waiting for the plaintiff to obtain an ergonomic evaluation and a doctor’s note

indicating the “specific accommodation needed”); 7/19/10, 8:35 a.m. Email, ECF No. 54-1 at 73

(Lee noting that the plaintiff’s physician still needed to identify the “actual reasonable

accommodation (i.e. chair, stand etc.)”); 9/17/10, 10:20 a.m. Email, ECF No. 54-1 at 77

(Vaughan-Roach indicating that she was waiting for “official documentation from your doctor

. . . stating the degree of your impairment”); 6/6/12, 11:14 a.m. Email, ECF No. 46-16 at 68 (Lee

49 indicating he was waiting for the plaintiff to identify “specific items you need for your

workstation”).

On still other occasions, MPD employees checked in with the plaintiff and offered to help

her move the process along. See, e.g., 7/13/10, 3:24 p.m. Email, ECF No. 47-25 at 5 (Lee

checking on the status of the plaintiff’s ergonomic assessment); 7/14/10, 4:49 p.m. Email, ECF

No. 47-25 at 5 (Lee offering to “contact with Human Resources and assist them in carrying out

your ergonomic assessment”); 10/3/10, 3:35 p.m. Email, ECF No. 47-17 at 15 (Cramer offering

to provide the plaintiff with contact information to obtain a chair); 6/6/12, 11:14 a.m. Email,

ECF No. 46-16 at 68 (Lee offering to “re-contact the necessary parties responsible for

conducting the ergonomic evaluations”); 6/14/12, 2:04 p.m. Email, ECF No. 46-16 at 66 (Lee

checking whether the plaintiff had begun telecommuting); 6/14/12, 3:22 p.m. Email, ECF No.

46-16 at 65 (Lee offering to “ascertain an update” regarding the telecommuting application,

despite his instruction that the plaintiff should reach out to Captain Coleman regarding the

application).

Taken together, these facts do not show bad faith or a breakdown of the informal,

interactive process. See Ward, 762 F.3d at 32. The defendant evidently attempted to assist the

plaintiff throughout her lengthy attempt to get accommodations, both by advising her and by

providing her with the necessary forms. While there were gaps in the chain of events and several

delays, the defendant at no point ended the interactive process and, indeed, worked with the

plaintiff until she received her requested equipment and was approved for telecommuting. On

this record, MPD did not fail to provide a reasonable accommodation for the plaintiff’s

disability.

50 IV. CONCLUSION

For the foregoing reasons, the defendant’s Motion for Summary Judgment is GRANTED.

An appropriate Order accompanies this Memorandum Opinion.

Date: December 29, 2017

__________________________ BERYL A. HOWELL Chief Judge