Shealayno'sun v. McCarthy

LENA SHEALAYNO'SUN, Plaintiff, v. RYAN D. MCCARTHY,¹ in his official capacity as Secretary of the Army, Defendant.

Case No. 18-cv-0746 (APM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

January 5, 2021

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Lena Shealayno'sun, an engineer with the U.S. Army Corps of Engineers ("the Corps"), brings this action against Defendant Ryan D. McCarthy, in his official capacity as Secretary of the Army, asserting claims of discrimination and retaliation under the Rehabilitation Act of 1973. Plaintiff was diagnosed with stage IV metastatic cancer in November 2015 and was subsequently granted reasonable accommodations, including full-time telework and a flexible schedule. She alleges that Defendant (1) discriminated against her by failing to accommodate her disability and (2) retaliated against her on the basis of her disability.

This matter is presently before the court on Plaintiff's Motion for Partial Summary Judgment and Sanctions for Spoliation of Evidence, and Defendant's Cross-Motion for Summary Judgment. Plaintiff moves for partial summary judgment on her retaliation claims only, whereas Defendant moves for summary judgment on all claims. After thorough consideration of theparties' arguments and the record in its entirety, the court concludes that genuine issues of material fact preclude entry of summary judgment on one of Plaintiff's retaliation claims—the lowering of her performance rating. The court, however, finds no genuine issues of material fact as to the remainder of Plaintiff's claims. Accordingly, the court denies Plaintiff's motion for partial summary judgment and grants in part and denies in part Defendant's motion for summary judgment.

II. BACKGROUND

A. Factual Background

1. Lead up to Plaintiff's Cancer Diagnosis

Plaintiff Lena Shealayno'sun has been an engineer for the U.S. government since 1987. Def.'s Mot. for Summ. J., ECF No. 34 [hereinafter Def.'s Mot.], Dep. of Lena Shealayno'sun, ECF No. 34-4 [hereinafter Pl.'s Dep. Tr.], at 13:4-6, 16:23-25. In January 2012, she started work as a "Direct Reporting Unit Engineer" for the U.S. Army Corps of Engineers' Directorate of Logistics ("DOL"). Def.'s Mot., Def.'s Stmt. of Material Facts Not in Genuine Dispute, ECF No. 34-2 [hereinafter Def.'s SoF], ¶¶ 1, 3, 11. An expert on engineering in facilities, Plaintiff is the only credentialed engineer within the DOL. See Pl.'s Mot. for Partial Summ. J. & Sanctions for Spoliation of Evidence, ECF No. 33 [hereinafter Pl.'s Mot.], Pl.'s Mem. of P. & A. in Supp. of Pl.'s Mot., ECF No. 33-1 [hereinafter Pl.'s Mem.], at 3; Def.'s SoF ¶ 20. Since joining the agency, Plaintiff's direct supervisor and rater has been the DOL Director, Jeffrey Burbach. See Def.'s SoF ¶ 21; Def.'s Mot., Dep. of Jeffrey Burbach, ECF No. 34-5 [hereinafter Burbach Dep. Tr.], at 104:19-105:04.

Between mid-June 2015 and October 31, 2015, Plaintiff was detailed to the Interagency and International Services division within the Corps. Pl.'s Dep. Tr. at 40:16-21, 48:11-13. Shereturned to the DOL in early November 2015, id. at 49:20-50:1, and with her return came some very unfortunate news. On November 6, 2015, Plaintiff was diagnosed with cancer. See id. at 50:17-20. Several days later, she learned it was stage IV metastatic cancer, which is incurable. Id. at 50:17-20, 58:17-23. Due to the advanced stage of Plaintiff's cancer, she required aggressive treatment. Id. at 85:21-25. Plaintiff immediately notified Mr. Burbach's deputy, Belinda Taswell, of her cancer diagnosis, and Ms. Taswell then notified Mr. Burbach. See Pl.'s Mem., Ex. 14 [hereinafter PEX 14], at 311.² Plaintiff requested that Mr. Burbach keep her medical condition private. See Def.'s Mem. of P. & A. in Opp'n to Pl.'s Mot. for Sanctions and in Opp'n to Pl.'s Mot. for Partial Summ. J., ECF No. 38 [hereinafter Def.'s Opp'n], Def.'s Resp. to Pl.'s Stmt. of Undisputed Material Facts, ECF No. 38-1 [Def.'s Resp. to Pl.'s SoF], ¶ 77; Burbach Dep. Tr., at 12:14-16.

2. Plaintiff's Request for Reasonable Accommodations

On November 13, 2015, Plaintiff contacted the Corps's Equal Employment Opportunity ("EEO") Specialist, Earl Newton, regarding a request for reasonable accommodations. See Def.'s Resp. to Pl.'s SoF ¶ 19. On that same day, Plaintiff says Ms. Taswell informed her that she had shared Plaintiff's cancer diagnosis with another Corps employee. See Pl.'s Dep. Tr. at 55:19-56:3. As a result, one of the accommodations Plaintiff sought was reassignment to another directorate due to the unauthorized disclosure of her medical information. See Pl.'s Opp'n, Ex. 10, ECF No. 37-1 [hereinafter Pl.'s Opp'n Ex. 10], at 108; Pl.'s Dep. Tr. at 55:6-11. Following her conversation with Mr. Newton, Plaintiff says she "sensed that he had some bias [due to his personal relationship with Ms. Taswell] and also some incompetence." Pl.'s Dep. Tr. at 54:18-21; Pl.'s Mem., Stmt. ofUndisputed Material Facts [hereinafter Pl.'s SoF], ¶ 23.³ As a result, Plaintiff instead turned to the Corps Command Surgeon, Commander Thomas Janisko, for assistance in filing her request for reasonable accommodations. Pl.'s Opp'n to Def.'s Mot. for Summ. J., ECF No. 37 [hereinafter Pl.'s Opp'n], Pl.'s Stmt. of Material Facts in Dispute [hereinafter Pl.'s Resp. to Def.'s SoF], ¶¶ 28-29.⁴

Through Commander Janisko, Plaintiff submitted two forms. On "Form 1-2 (Medical Information Sheet)," Plaintiff's physician Dr. Tejaswi Sastry explained that Plaintiff had been diagnosed with "metastatic cancer" of unknown primary source, see Def.'s Mot., Ex. 1, ECF No. 34-8 [hereinafter DEX 1], at 3;⁵ Pl.'s SoF ¶ 27, and that her "[p]rognosis & treatment plans [we]re pending . . . results from additional testing & consultation reports from specialists," Pl.'s Opp'n Ex. 10 at 108. Dr. Sastry noted that Plaintiff's "diagnosis [would] render[] a significant impairment for an estimated 6-8 months while [Plaintiff] receive[d] treatment & recover[ed] from that treatment." Id. On "Form 1-1 (Request for Reasonable Accommodation)," Plaintiff requested (1) "[m]edical telework and flexibility in scheduled work hours as required for medical appointments" and procedures; (2) "[a]dditional time to complete tasks for non-mission essential/non-critical job duties"; and (3) "[r]e-assignment to another . . . Directorate due to unauthorized disclosure of private medical information in violation of the Privacy Act and/or HIPAA Act, on/about 13 NOV 2015." See DEX 1 at 2.

As Plaintiff's supervisor, Mr. Burbach was the "approval authority" for her request for reasonable accommodation. Def.'s SoF ¶ 31. Because Mr. Burbach was unfamiliar with the accommodation process, however, he says he sought guidance from Mr. Newton, Commander Janisko, and others, on how to handle Plaintiff's accommodation request. See Burbach Dep. Tr.at 50:14-17; Pl.'s Mem., Ex. 2, Jeffrey Burbach 30(b)(6) Dep. Tr., at 118. In an email to Plaintiff dated November 30, 2015, Commander Janisko relayed to Plaintiff that Mr. Burbach was "completely on board" with her request for reasonable accommodation and would "support[] [her] in whatever [she] need[ed]." Def.'s Mot., Dep. of Thomas Janisko, ECF No. 34-7 [hereinafter Janisko Dep. Tr.], at 62:9-13. At that time, Plaintiff was placed on full-time medical telework and a flexible work schedule to attend medical appointments. See Pl.'s Resp. to Def.'s SoF ¶ 48; Pl.'s Dep. Tr. at 98.

According to Mr. Newton, Mr. Burbach did not contact him about Plaintiff's request for accommodation until sometime in 2016. See Def.'s Mot., Dep. of Earl Newton, ECF No. 34-6 [hereinafter Newton Dep. Tr.], at 80:2-3. Until then, he explains, Mr. Burbach had been letting Plaintiff telework for a year as an informal grant of her accommodation request. Id. at 80:18-81:7, 82:22-84:6. Shortly after Mr. Newton instructed Mr. Burbach on the proper procedure for processing reasonable accommodation requests, Mr. Newton says Mr. Burbach inquired as to what "restrictions" he could place on Plaintiff. Id. at 86:22-87:14. Mr. Burbach said he wanted to impose a weekly report on Plaintiff and other teleworkers to get a better understanding of what they were working on. Id. at 88:21-89:16.

3. Renewal of Plaintiff's Accommodations and Her EEO Complaints

In the spring of 2016, the relationship between Plaintiff and Mr. Burbach began to sour. Plaintiff alleges that by April 2016, Mr. Burbach was calling her monthly to ask about her healthstatus and when she planned on physically coming into the office. See Pl.'s Dep. Tr. at 107:8-15; see also Pl.'s SoF ¶ 47 (citing Pl.'s Dep. Tr. at 107:10-20) ("His calls became progressively more aggressive in tone and he continuously asked for a specific date of when [Plaintiff] would return."). At the same time, Plaintiff was undergoing aggressive treatment for her cancer. In April 2016, Plaintiff underwent surgery, and because there were complications, she was out of work for approximately two weeks. See Pl.'s Dep. Tr. at 79:11-21. She started a second round of chemotherapy in June 2016 and underwent treatment weekly, usually on Tuesdays, through the end of August 2016. See id. at 80:13-81:8.

On September 23, 2016, Mr. Burbach sent Plaintiff an email in which he asked her to submit a new request for accommodations because it had been "nearly a year since the first one was signed." DEX 14 at 39. He stressed that the request should "include [Plaintiff's] Physician's current Diagnosis and Prognosis." Id. In the same email, Mr. Burbach informed Plaintiff that she was expected to call in to all DOL meetings, including staff meetings on Tuesdays (when Plaintiff frequently was scheduled to see her oncologist, see Pl.'s Dep. Tr. at 80:21-81:13), among other requirements, see DEX 14 at 39-40.

On October 26, 2016, Plaintiff's physician, Dr. Rebecca L. Stone, wrote a letter to the agency explaining that Plaintiff's prognosis remained "uncertain," and because her cancer was at stage IV, "there [was] a 90%...