Richardson v. Powell

EDWARD RICHARDSON, Plaintiff, v. JEROME H. POWELL, Chair, Board of Governors of the Federal Reserve System, Defendant.

Civil Action No. 14-1673 (RMC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 21, 2019

MEMORANDUM OPINION

Edward Richardson, who suffers from asthma, sues the Federal Reserve Board of Governors, his former employer, alleging workplace discrimination and discharge because of his disability, in violation of the Rehabilitation Act. The government argues that Mr. Richardson was terminated due to problems with his background security check and performance issues. Both parties move for summary judgment.¹ Having reviewed the parties' briefs and the record, the Court will grant the government's motion for summary judgment and deny Mr. Richardson's cross-motion for summary judgment.

I. BACKGROUND

A. The Board's Explanation of Mr. Richardson's Termination

The government tells one story of Mr. Richardson's employment:

From June 8, 2009, until June 7, 2010, Edward Richardson was employed by the Board of Governors of the Federal Reserve System (the Board) as a provisional Law Enforcement Officer (LEO) in the Law Enforcement Unit (LEU). Def.'s SOF ¶ 1. Board officers are responsible for the physical security of Board premises and stand a variety of posts at the Board's facility in Washington, D.C. Id. ¶ 2. Pursuant to the job description, a Board LEO "[w]orks under demanding mental and physical conditions," "[m]ust successfully pass a background investigation," "[m]ust be prompt," and "[w]orks rotating shifts, weekends and holidays as dictated by the unit's need to provide sufficient security coverage on a 24 hour basis, 7 days a week." Id. ¶ 3.

Mr. Richardson's offer letter stated that his appointment was "subject to the Board's one-year provisional employment period" and "contingent upon" his "[s]uccessful completion of a background investigation, which includes a national agency check with written inquiries (SF-86)." Id. ¶ 4. The offer letter also informed Mr. Richardson that his "background investigation will be initiated after you begin employment with the Board. If for any reason the Board identifies a problem pursuant to that investigation the Board has the right to terminate your employment at that time." Id. ¶ 5.

Mr. Richardson signed his SF-86 background investigation questionnaire on August 28, 2009, certifying that in the last seven years he had not been "1. Fired from a job"; "2. Quit a job after being told you would be fired"; "3. Left a job by mutual agreement following charges or allegations of misconduct"; "4. Left a job by mutual agreement following notice of unsatisfactory performance"; or "5. Left a job for other reasons under unfavorablecircumstances." Id. ¶ 6. Despite this certification, Mr. Richardson's Office of Personnel Management (OPM) background investigation reported that he had been charged with misconduct by his previous employer, the Prince William County Police Department, and that that Department issued a termination letter to Mr. Richardson in April 2009, after a hearing on the charges at which Mr. Richardson was found to be "misleading and untruthful." Id.

Mr. Richardson also had problems while working for the Board. On March 4, 2010, Mr. Richardson allowed a vehicle with six passengers to enter the Board's parking garage without checking the passengers' identifications as he was required to. Id. ¶ 9. In addition, he had "repeated unapproved incidents of tardiness" during his year with the Board. Id. ¶ 10; see also Def.'s Mot., Ex. C, Appeals Termination Letter [Dkt. 137-2] at 3.

Based on the results of his background investigation and these performance issues, the Board terminated Mr. Richardson at the end of his provisional employment period. Def.'s SOF ¶ 11. The Board affirmed this decision on internal appeal, citing Mr. Richardson's lack of candor in the background investigation process as an additional basis for his termination. Id. ¶ 12; Appeals Termination Letter.

B. Mr. Richardson's Explanation for His Termination²

Mr. Richardson tells another story about his time at the Board:

Mr. Richardson is a military veteran, who came home from war with lung problems that led to asthma. In November 2009, shortly after completing basic training with theBoard, Mr. Richardson was put under the supervision of Sergeant Robert Bakale. Pl.'s Cross-Mot., Ex. A, Aff. of Robert Bakale (Bakale Aff.) [Dkt. 139-1] at 139.³ Around that time Mr. Richardson verbally informed Sgt. Bakale that he suffered from asthma. Id. Mr. Richardson alleges that around this same time he asked Sgt. Bakale for a reasonable accommodation due to his asthma, "only to accommodate my disability related call-offs, and to attend disability related medical appointments."⁴ Am. Compl. [Dkt. 8] ¶¶ 13-14. Although Sgt. Bakale allegedly promised to relay this request to LEU managers, Mr. Richardson's request went unacknowledged. Id. ¶¶ 12-13.

Notwithstanding his alleged request for an accommodation, over the next few months the Board logged multiple call-offs and incidents of late arrival (tardiness or "tardies") for Mr. Richardson.⁵ Pl.'s Cross-Mot., Ex. B, Bakale Call-Off Email [Dkt. 139-2] at 64-66. Although some of these call-offs were excused, many were not and Mr. Richardson was progressively disciplined as a result. Id. (listing 10 unexcused call-offs, 4 excused call-offs, and 5 tardies). Mr. Richardson alleges that he had medical documentation excusing all of his call-offs but that his supervisors removed the medical documentation from his file "to promote anadverse action, as well as render the impression that [he] never produced supporting documentation for any of his disability related call-offs." Pl.'s Cross-Mot. at 7-8.

Mr. Richardson was also the subject of teasing at the workplace—another Board officer, Himanshu Bhatia, called him "sumo," allegedly on account of his "height to weight ratio." Am. Compl. ¶ 192; see also Pl.'s Cross-Mot., Ex. A, Aff. of Himanshi Bhatia (Bhatia Aff.) [Dkt. 139-1] at 263. Mr. Richardson alleges that this name calling was sanctioned by his supervisors in retaliation for his request for reasonable accommodations. Pl.'s Cross-Mot. at 11. Mr. Richardson alleges further indignities due to his disability: he was denied a promotion to Senior LEO, Am. Compl. ¶ 193; assigned to three different work shifts, id.; denied placement in a desirable "hybrid" shift, id. ¶ 197; and given unfavorable performance reviews, id. This discriminatory treatment allegedly culminated in his unlawful termination.

Although Mr. Richardson's complaint alleges a variety of federal and common law claims, all but his claim under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., have earlier been dismissed.⁶ After extensive discovery, both parties now move for summary judgment.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure states 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); accord Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is "material" if it is capable of affecting the substantive outcome of litigation. Anderson, 477 U.S. at 248. A dispute is "genuine" if there is sufficient admissible evidence such that a reasonable jury could return a verdict for a non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

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). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party's favor. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. The nonmoving party must point to specific facts showing that a genuine issue of material fact requires trial. Celotex, 477 U.S. at 324. The nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50. "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of his obligation to support his allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Hussain v. Principi, 344 F. Supp. 2d 86, 94 (D.D.C. 2004) (quoting Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. March 31, 1998)).

The Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability" may "be subjected to discrimination" by any federal agency "solely by reason of heror his disability." 29 U.S.C. § 794(a). The Act further provides that "[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under . . . the Americans with Disabilities Act of 1990 (42 U.S.C. § 12111 et seq.)." Id. § 794(d). Indeed, because the Rehabilitation Act and ADA are similar in substance, cases brought under one statute are often analyzed in a manner similar to the other.⁷ See Chenari v. George Washington Univ., 847 F.3d 740, 746 (D.C. Cir. 2017).

III. ANALYSIS

A. Termination Because of Disability

The core of Mr. Richardson's case is that the Board terminated his employment because of his asthma. In response, the Board has articulated a series of legitimate,...