Blanchard v. Arlington Cnty.

ALLISON BLANCHARD, Plaintiff, v. ARLINGTON COUNTY, VIRGINIA, Defendant.

CIVIL No. 1:21-cv-0649

United States District Court, E.D. Virginia, Alexandria Division

February 24, 2023

MEMORANDUM OPINION

T.S Ellis, III United States District Judge.

Plaintiff Allison Blanchard filed this action against her former employer, Arlington County, Virginia (the “County”) alleging (i) sex discrimination pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”); (ii) disability discrimination pursuant to the Americans with Disabilities Act (“ADA”); (iii) age discrimination, pursuant to the Age Discrimination in Employment Act (“ADEA”); and (iv) retaliation under each act as well as retaliation under the Family Medical Leave Act (“FMLA”). At the threshold stage, pursuant to Rule 12(b)(6), Fed. R. Civ. P., the County's motion to dismiss was granted in part and denied in part. See Order, dated February 15,2022 (Dkt. 21). Specifically, the motion was granted with respect to plaintiff's claims of a pregnancy-related hostile work environment, a disability-related hostile work environment, and age-based discrimination. The parties thus proceeded to discovery on plaintiff's five remaining claims that she was terminated due to: (i) Count I - pregnancy discrimination; (ii) Count III -retaliation pursuant to Title VII; (iii) Count IV - disability discrimination; (iv) Count VI -retaliation pursuant to the ADA; and (v) FMLA retaliation.

At issue now is defendant's motion for summary judgment, in which defendant argues that summary judgment should issue because plaintiff cannot establish a causal nexus between her termination and any alleged discrimination or protected characteristic. Plaintiff opposes the motion for summary judgment, arguing that there are material facts in dispute and that the undisputed facts create a reasonable inference of discrimination.

The motion has been fully briefed and oral argument was held on August 26, 2022. The matter is thus ripe for disposition. For the reasons stated below, defendant's motion must be granted, and judgment must enter in favor of defendant.

I.

Summary judgment is appropriate only where there are no genuine disputes of material fact. See Rule 56, Fed.R.Civ.P. To this end, defendant, in compliance with Rule 56 and Local Rule 56, set forth a statement of material facts in separate enumerated paragraphs that defendant contends are undisputed and supported by record citations. The Rules next required plaintiff to respond to defendant's statement of undisputed fact by “listing all material facts to which it is contended that there exists a genuine dispute” with citations to the record. L.R. 56(B). Plaintiff complied with this portion of the Rule and contested only nine of defendant's thirty-eight asserted undisputed facts. Accordingly, except for the nine facts identified by plaintiff in her response brief as disputed, the remaining undisputed facts asserted by defendant are deemed admitted pursuant to the Rules. See id. Plaintiff did not fully comply with the Rules, however, because plaintiff also set forth a narrative “Summary of Relevant Facts.” Opp'n Br. at 2. Neither the Rules nor case authority permit this. See Sadeghi v. Inova Health Sys., 251 F.Supp.3d 978,981 (E.D. Va. 2017). By setting forth an alternative, narrative statement of the facts, plaintiff has made it difficult for defendant to respond to plaintiffs alternative facts and plaintiff has made it “difficult to determine exactly which material facts are disputed.” Id. (citing Integrated Direct Marketing, LLC v. May, 129 F.Supp.3d 336, 345 (E.D. Va. 2015)).

Accordingly, the following statement of facts is derived from a careful review of (i) defendant's statement of undisputed facts, most of which are uncontested and admitted by plaintiff; (ii) plaintiff's response which contests only nine alleged undisputed facts;^[1] and (iii) the summary judgment record as a whole. Given this, the undisputed facts are as follows:

1. Plaintiff is a woman and has two children, one born in 2015 and one born in 2019.

a. To conceive her children, plaintiff relied on in vitro fertilization (“IVF”). The process involved at least seven different IVF cycles and plaintiff miscarried on several occasions.

2. In June 2012, plaintiff was hired by the County as a limited-term Facility Project Programmer or Facilities Project Specialist in the Department of Environmental Services (“DES”), Facilities and Engineering Service Area, Director's Office.

a. A limited-term employee is a position with a limited duration specific to a task assigned to the person hired.^[2]

3. George May, at all relevant times, was the Deputy Director of the County's Facilities and Design and Construction (“FDC”) group. The FDC performs facility design and construction.

4. June Locker, at all relevant times, was the Bureau Chief for FDC.

5. Michelle Congdon was first hired by the County in May 2003 as a limited-term employee in an interior position. Thereafter, she was hired for a permanent position. After a promotion to Interior Design Supervisor, Congdon became the Planning Manager in 2011.

6. When plaintiff applied to work for the County, plaintiff was interviewed by a panel consisting of: (i) Ron Peele; (ii) Karin Talley; (iii) Congdon; and (iv) May. The panel made a recommendation to Greg Emanuel, Deputy Director for Facilities and Engineering, that plaintiff be hired, and plaintiff later interviewed directly with Emanuel.

7. At the time plaintiff was hired, plaintiff reported directly to Emanuel.

8. The offer of employment expressly provided: “The expected duration of this limited-term assignment is up to two years. Since you are in a limited-term position, you will not serve a probationary period and you do not have permanent status.”

a. Prior to 2020, if a limited term employee was continued beyond the time specified in the offer of employment letter, as occurred here, the employee did not receive any formal notice of continuation of employment.

9. During plaintiff's employment by the County, her position never changed from a limited-term position to a permanent position.

10. Shortly after plaintiff began working for the County, plaintiff's supervisor changed from Emanuel to Peele. Peele remained plaintiff's supervisor until 2015 when he left County employment.

11. Upon Peele's departure, Locker became plaintiff's supervisor.

12. On December 9,2015, plaintiff took FMLA-based maternity leave. Plaintiff was on FMLA leave from December 9,2015 to March 2016.

13. During plaintiff's first maternity leave, Congdon replaced Locker as plaintiff's supervisor.

a. At the time, Congdon was the Planning Manager and reported to Locker.

b. Plaintiff was Congdon's only direct report.

14. As plaintiff's supervisor, Congdon was responsible for approving plaintiffs timecards and it was necessary for Congdon to track when plaintiff was in the office.

15. In August 2018, plaintiff notified Congdon that plaintiff was 12 weeks pregnant.

16. Although the record reflects that Congdon never denied plaintiff leave for plaintiff to attend pregnancy-related appointments, in 2017, Congdon did deny one of plaintiffs requests for leave for a fertility-related appointment. Congdon also occasionally asked plaintiff to change the times of her pregnancy-related appointments.^[3]

17. In September 2018, Congdon assigned plaintiff as a project manager for the Arlington County Government Trades Center (“Trades Center”).

a. The Trades Center project consisted of walking the Trades Center campus with consultants. This was to allow the consultants to assess what updates would need to be made to facilities so that the County could update its master plan and budget appropriately.

b. Plaintiffs role was to walk the consultants around the site and to provide access to the building.

18. At the time of her assignment, plaintiff had no medical restrictions that prevented her from serving as a project manager for the Trades Center project.

19. Plaintiff was concerned about the Trades Center project, however, because much of the work would fall within the last trimester of her pregnancy.

20. In December 2018, plaintiff obtained a note from her doctor which limited plaintiff to sedentary work for half of her workday but allowed plaintiff to walk for the other four hours of her workday. The doctor's note did not preclude plaintiff from working at the Trades Center, nor did it prevent plaintiff from engaging in four hours of continuous walking.

21. Plaintiff requested an accommodation based on her doctor's note. Although the County granted plaintiffs accommodation request,^[4] plaintiff remained uncomfortable with the work assignment. Plaintiff went to Locker and Congdon to express her concerns.

22. Congdon and Locker requested that plaintiff send written documentation of plaintiffs concerns. Plaintiff did so.

23. According to plaintiff, Congdon and Locker did not believe plaintiffs concerns were valid.

24. Plaintiff then reached out to Justin Corwin, an Occupational Safety and Health Administration specialist with the County, on December 10, 2018. Plaintiff stated that she wanted to consult about the Trades Center project and whether “the chemicals at that location cause me [sic] any threat to me or my unborn child?” Def. Exh. 5.

25. Corwin responded: “There are no dangers to unborn children present from walking around any of the DES sites at trades that I'm aware of. . . He further noted “Just walking around your primary route of entry would be inhalation. . . The shop is fairly well ventilated and would be less exposure than sitting on 395 stop traffic (as an example).” Corwin stated that plaintiff was entitled to look at the safety data on any specific chemicals, but that this...