Morris v. Jackson

994 F.Supp.2d 38

Connie K. Morris, Plaintiff,

v.Lisa P. Jackson, Defendant.

Civil Action No. 07–491 (RWR)

United States District Court, District of Columbia.

October 30, 2013

Theodore S. Allison, Karr & Allison, P.C., Washington, DC, for Plaintiff.

Judith A. Kidwell, Rudolph Contreras, David Cotter Rebecca, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD W. ROBERTS, Chief Judge

Plaintiff Connie Morris brings this action under the Rehabilitation Act, 29 U.S.C. § 701 et seq. against her former employer, the Environmental Protection Agency (“EPA”), alleging that the EPA discriminated against her based on disability, failed to accommodate her disability, and retaliated against her for complaining about it. The EPA has moved for summary judgment. Because no material facts are in dispute and the EPA has shown that it is entitled to judgment as a matter of law on Morris' complaint, the motion for summary judgment will be granted.

BACKGROUND

Morris suffers from a disability she describes as a “yeast sensitivity” that has caused her to have allergic reactions after being exposed to small concentrations of yeast or other molds. Am. Compl. ¶¶ 12–13. From January 2003 through March 2007, Morris was employed by the EPA as a Technical Information Specialist for the Federal Register Staff of the EPA's Office of Program Management Operations. Def.'s Stmt. of Mat. Facts (“Def.'s Stmt.”) ¶¶ 1–2; Pl.'s Stmt. of Mat. Facts (“Pl.'s Stmt.”) ¶¶ 1–2. Morris's position description set forth her duties and placement. She was required to “provide leadership in executing editorial policy and priorities” by coordinating document preparation efforts that were necessary to implement the provisions of federal legislation that the EPA's Office of Prevention, Pollution, and Toxic Substances (“OPPTS”) administers and enforces. Def.'s Mot. for Summ. J. (“Def.'s Mot.”), Ex. F (“Position Description”) at 1; Am. Compl. ¶ 10. Morris was expected to provide training, assistance and guidance to EPA personnel who were working with regulatory documents, and to respond immediately to questions about the location and status of OPPTS documents that were being circulated for signature. Position Description at 1; Def.'s Stmt. ¶¶ 6–9; Am. Compl. ¶ 10. Morris' work was “work station oriented,” and she was assigned to the 6109 Connecting Wing Space known as “EPA West,” an area where 18 other EPA employees worked. Position Description at 1; Def.'s Stmt. ¶¶ 5, 10.

Morris was directly supervised by the Director of the Federal Register Staff, John Richards, and indirectly supervised by the Associate Assistant Administrator of the OPPTS, Marylouise Uhlig. Def.'s Stmt. ¶¶ 3–4. According to Richards, it was “necessary” for Morris to work at an EPA work site.

[Morris] was part of a team. In that role, she was critical to the development of the authoring tools that we were preparing for the entire program. She had to interface with other people. She was critical in the recruitment of C-programmers, because we didn't have any other programmers on staff, and these people were supposed to assist [Morris] in the programming work she was doing. In addition to that, there was a need for her to help bring people along in the process and help support the staff. I mean, she would help people when they had computer problems; she did a lot of different things within the office. In keeping her within the EPA transportation system, it allowed me to send people to wherever [Morris] was, if necessary, to work with her. Once she was outside the EPA transportation system, there was no way I could make that connection. I personally decided it would be inappropriate for me to be authorizing people to travel to her home or even to an alternative telecommunications site run by GSA, where we had no transportation for these people. So keeping her inside the EPA transportation system was the key element, and what we tried to do is find her a place within the EPA transportation system where she could be reached that worked for her.... [The EPA transportation system is a] series of shuttle buses, time-consuming, fixed schedule buses to transport EPA people from one site to another. But the key element is they're free. I didn't have to reimburse people for Metro, I didn't have to do anything as far as paying for taxicabs, and I didn't—I couldn't require other people to walk to wherever she was.

Def.'s Mot., Ex. D (“Richards' Dep.”) at 35–37.

In November 2004, Morris reported to Richards that she was experiencing an “allergy to the EPA workplace.” Def.'s Stmt. ¶ 12, Ex. C at 1. Richards allowed Morris to test various areas to determine whether she thought she could work comfortably in a different location. Richards allowed Morris temporarily to work from home. Morris eventually decided to work in a conference room located in the “EPA East” building. Def.'s Stmt. ¶¶ 14–16. However, in December 2004, Morris complained to Richards that she was again experiencing allergic reactions in the EPA East conference room, and she asked to work from home permanently. Id. ¶ 17. Richards purchased air purifiers and air filters and tested the air quality in the areas where Morris worked.¹ The air quality testing indicated that the air in Morris' workspace was actually superior to outside air, and that it contained no fungal growth, no airborne microbial amplification, and did not increase the risk to Morris' health. Id. ¶¶ 18–19.²

On April 29, 2005, Morris asked to permanently work from her home, as a reasonable accommodation for her “extreme sensitivity” to “[o]ngoing exposure to mold, mildew, and dust mites from the work environment,” which caused “numerous allergic reactions with episodes of body swelling, breathing difficulties, bronchitis, rashes, rapid heart rate, rise in blood pressure and several other symptoms relating to allergy sensitivity.” Am. Compl. ¶ 6; Def.'s Stmt. ¶¶ 23–24. In July 2005, the EPA's National Reasonable Accommodation Coordinator issued a “Determination of Disability” regarding Morris' request, stating that “after careful review” of the medical information provided by Morris, which included reports from her primary doctor and from Dr. Ahmad Shamin, “it is confirmed that a medical condition exists that substantially limits [Morris'] major life activities of breathing and walking and therefore she is determined to be a person with a disability” under the Rehabilitation Act, giving EPA management the authority to provide Morris with a reasonable accommodation. Pl.'s Opp'n, Ex. 5. Afterwards, the EPA assigned Morris to a building which was designated as a “clean space” facility, located in Crystal Station, Virginia. Morris was the only member of Federal Register Staff who worked at the Crystal Station building, and when contractors or other members of the Federal Register Staff had to interact with Morris in person, they had to travel to the building in Crystal Station. Am. Compl. ¶ 13; Def.'s Stmt. ¶¶ 25–27.

Morris informed the EPA that she continued to suffer allergic reactions at the Crystal Station building. The EPA tested the air quality in the EPA building at Potomac Yards, and found that the air quality there was cleaner than ambient air. In June 2006, the EPA relocated Morris to the EPA's building in Potomac Yards. Am. Compl. ¶ 23; Def.'s Stmt. ¶ 29. Morris asserted, though, that she was experiencing allergic reactions that were triggered by that building. Am. Compl. ¶ 26. Richards asked Morris to provide medical documentation to support her assertion that the air in the building at Potomac Yards triggered her allergic reactions. Morris did not provide any, and in October 2006, Richards reassigned Morris back to the EPA East building. Am. Compl. ¶ 30; Def.'s Stmt. ¶ 30; Def.'s Mem., Ex. C. at 2. In December 2006, a separate Equal Employment Opportunity Commission (“EEOC”) complaint ³ that Morris filed against the EPA was dismissed, and Morris was ordered to report to work at EPA–East on January 2, 2007. Morris did report for work on January 2, 2007, but she left two hours after she arrived. In February 2007, Morris was charged with being absent without leave for 412 hours between August 2006 and December 2006, and her employment was terminated effective March 10, 2007. Am. Compl. ¶¶ 8; Def.'s Stmt. ¶¶ 31–34.

In March 2007, Morris filed this action. Her amended two-count complaint alleges that the EPA failed to accommodate her disability (Count 1) and retaliated against her (Count 2). Am. Compl. ¶¶ 58–66. The EPA has moved for summary judgment on both counts, arguing that Morris is not disabled within the meaning of the Rehabilitation Act, that even if she were disabled she was not a qualified person with a disability, that her desired accommodation (working at home) was not a reasonable one, and that the failure to acquiesce to Morris' request was not a materially adverse employment action that can form the basis of a retaliation claim. Morris opposes.

DISCUSSION

“ ‘Summary judgment may be appropriately granted when the moving party demonstrates that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law.’ ” Modis v. InfoT ran Sys., Inc., 893 F.Supp.2d 237, 240 (D.D.C.2012) (quoting Pueschel v. Nat'l Air Traffic Controllers Ass'n, 772 F.Supp.2d 181, 183 (D.D.C.2011) (internal quotation omitted)). “ ‘In considering a motion for summary judgment, [a court is to draw] all ‘justifiable inferences' from the evidence ... in favor of the nonmovant.’ ” Modis, 893 F.Supp.2d at 240 (quoting Pueschel, 772 F.Supp.2d at 183 (quoting Cruz–Packer v. Dist. of Columbia, 539 F.Supp.2d 181, 189 (D.D.C.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “The relevant inquiry ‘is the threshold inquiry of determining whether...