Smith v. CSRA

12 F.4th 396

Tina SMITH, Plaintiff – Appellant,andRobert Farnsworth, Plaintiff,

v. CSRA; Merrick B. Garland, Attorney General, Defendants – Appellees,andGeneral Dynamics Corporation, Defendant.

No. 20-1377

United States Court of Appeals, Fourth Circuit.

Argued: May 5, 2021

Decided: September 1, 2021

ARGUED: Joshua Harry Erlich, THE ERLICH LAW OFFICES, PLLC, Arlington, Virginia, for Appellant. Rebecca Sara Levenson, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Joseph Richard Ward, III, KULLMAN FIRM, PC, Englewood, Colorado, for Appellees. ON BRIEF: Davia Craumer, Katherine L. Herrmann, THE ERLICH LAW OFFICE, PLLC, Arlington, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Meghan Loftus, Assistant United States Attorney, Catherine M. Yang, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee Merrick B. Garland.

Before GREGORY, Chief Judge, QUATTLEBAUM, Circuit Judge, and KEENAN, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Quattlebaum and Senior Judge Keenan joined.

GREGORY, Chief Judge:

Tina Smith ("Smith") appeals from the district court's entry of summary judgment in favor of government contractor CSRA, Inc. ("CSRA") and the Attorney General of the United States¹ in his capacity as the federal official in charge of the Drug Enforcement Administration ("DEA"), on claims of disability discrimination and retaliation in violation of the Rehabilitation Act of 1973 (the "Rehabilitation Act"), 29 U.S.C. § 791 et seq ., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq . We affirm the district court's summary judgment as to Smith's disability discrimination claim but vacate summary judgment as to her retaliation claim and remand for further proceedings.

I.

A.

We "review[ ] de novo the district court's order granting summary judgment." Jacobs v. N.C. Admin. Office of the Cts. , 780 F.3d 562, 565 n.1 (4th Cir. 2015). "A district court ‘shall grant summary judgment 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.’ " Id. at 568 (quoting Fed. R. Civ. P. 56(a) ). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party." Id. (internal quotation marks omitted). In determining whether a genuine dispute of material fact exists, "we view the facts and all justifiable inferences arising therefrom in the light most favorable to ... the nonmoving party." Id. at 565 n.1 (internal quotation marks omitted).

Smith is a geospatial intelligence expert who in 2013 began working with DEA as a subcontractor assigned to the agency's geospatial intelligence program (the "Program"). Smith worked at the direction of DEA's Chief Technology Officer Mark Shafernich at DEA's Sterling, Virginia Data Center.

At the beginning of their working relationship, Smith informed Shafernich that she has a disability that adversely affects her mobility, limiting her ability to stand, walk, sit, ascend and descend stairs, and drive. Shafernich authorized accommodations for Smith's disability, including (1) a remote work "token" that gave her secure access to DEA's sensitive but unclassified infrastructure while working offsite, and (2) onsite parking at the Sterling Data Center, where DEA provided her with an office and equipment to perform her duties. DEA retained sole authority to activate and/or revoke its remote tokens.

In 2015, Smith formally requested (with supporting medical documentation) and was granted an accommodation for her disability that authorized her to work remotely 50 percent of the time. From this point through 2017, Smith received positive performance reviews from Shafernich as well as other DEA and contractor employees and consultants.

In 2016, CSRA became the prime contractor for an information technology contract with the Department of Justice and assumed responsibility for supplying the subcontracted labor under its contract with DEA. CSRA Program Manager Scott Barnhart coordinated the DEA task order as part of the prime contract. Barnhart did not manage her day-to-day activities or schedule. Instead, DEA directed her work in the form of identified deliverables.

When CSRA took over, Shafernich requested to retain Smith in the Program. On June 7, 2016, Smith, through her company, Smith Global, LLC, entered into a subcontract (the "Consultant Agreement") with CSRA to continue in her position. The Consultant Agreement provides in part:

[T]he Consultant's relationship to [C]SRA shall be to provide services on an independent contractor basis. Nothing in this agreement should be construed to create a ... employer-employee relationship. Consultant (a) is not the agent of [C]SRA; ... and (c) will not be entitled to and waives any right to any benefits that [C]SRA makes available to its employees, such as group insurance, holidays or paid time off, and 401(k) eligibility and match. Consultant will not be entitled to or covered by worker's compensation coverage, unemployment insurance or any other type or form of insurance normally provided by [C]SRA for its employees. [C]SRA will not be responsible for withholding federal income or social security taxes from the fee paid to the Consultant.

J.A. 101.²

The Consultant Agreement further provided that either party could terminate the Agreement "at any time and without cause," J.A. 103, and that the "Place of Performance" included "Various sites as directed by Customer and/or [C]SRA." J.A. 100. The Agreement also provided that DEA determined the work hours for performing the contracted services. Smith's position did not change in substance or structure under the Consultant Agreement. She continued to work, with accommodations, under Shafernich's supervision at the Data Center alongside both CSRA and DEA employees.

In April 2017, Smith met with Maura Quinn, DEA's Acting Deputy Assistant Administrator with the Office of Information Systems, to brief her on the Program. According to DEA, Quinn became dissatisfied during the meeting when Smith was unable to answer questions about the Program. As a result, on April 25, 2017, Quinn directed that Smith and her project partner, CSRA employee Joseph Marceau, begin reporting to DEA headquarters on May 1, 2017, to work under the supervision of DEA Project Manager Kevin Tseng and Section Chief Mildred Tyler.

Smith believed the transition to DEA headquarters was so that the contractors could "fully brief" the headquarters team "to make sure they understood where the project was and the next steps for moving forward" and could "get[ ] control" of the Program's resources. J.A. 539, 797, 799. But according to Quinn, she moved the Program from the Sterling Data Center to DEA headquarters because she had formed the impression that Smith's services may not have been serving DEA's interests and needs, and that Smith may not have the technical skills necessary to achieve DEA's goals for the Program.

For Quinn, the meeting with Smith also confirmed her concerns with Shafernich's oversight of the Program in Sterling. She concluded that new leadership of the Program at DEA headquarters was needed to ensure the Program better met DEA's law enforcement needs, particularly the need to expand access to geospatial intelligence materials to agents throughout the DEA. Quinn had also learned that the Program duplicated the efforts of another DEA geospatial program in El Paso, Texas which, unlike the Program in Sterling, was utilizing "the latest technology." J.A. 1202. Quinn decided it was necessary to consolidate the programs, and Tseng was tasked with managing the transition and decommissioning the Sterling Program.

Upon learning of the transition to a new task manager and that she would be required to work at DEA headquarters, Smith lobbied to maintain her previous remote work and task monitoring arrangement. Before the change in work location took effect, Smith stated that there was "a case for location flexibility based on the task priorities and [her] physical disability" and reminded Barnhart and Shafernich that she "works remote[ly] 50% of the time due to physical disability, per medical provider letter to DEA." J.A. 848. Barnhart responded to Smith, explaining that the matter "will need to be worked and passed through [Tyler] and [Tseng]." J.A. 848.

Barnhart's response was consistent with CSRA's informal policy for handling subcontractor accommodation requests. CSRA refers the subcontractor to the company that employs them, facilitates communications between that company and the government client to whom the subcontractor is assigned, and lobbies the government client for the accommodation. DEA's accommodation policy (the "Accommodation Policy") establishes procedures for considering employee accommodation requests but makes no reference to contractors. DEA's EEO office analyzes whether a contractor's accommodation request that "is otherwise reasonable and properly supported by medical documentation can and should be provided by DEA as opposed to the contractor's company." J.A. 338. DEA expects the contract representative for the prime contractor company, in this case Barnhart, to be involved in accommodation discussions.

DEA officials did not respond to Smith's request to continue her remote work arrangement before she was required to report to DEA headquarters. On May 2, 2017, the first day she reported to work at that location, Smith asked Tyler for permission to park onsite and to continue working remotely up to 50 percent of the time based on the accommodation Shafernich had approved. Smith supported her request with an updated letter from her physical therapist describing her current physical limitations. J.A. 511. Without a parking pass, Smith was forced to park either at an adjacent hotel or shopping mall. Both options required her to walk a...