                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


Vernette E. Stewart,                  :
                                      :
               Plaintiff,             :
       v.                             :              Civil Action No. 13-1125 (CKK)
                                      :
Mary Jo White,                        :
                                      :
               Defendant.             :


                                 MEMORANDUM OPINION

       The parties in this employment discrimination case were ordered to address plaintiff’s

claim arising from her request for reasonable accommodations for her upper respiratory

condition. See Stewart v. White, 61 F. Supp. 3d 118, 133-34 (D.D.C. 2014). Defendant has

supplemented the record, see Def.’s Suppl. to Its Mot. to Dismiss or, in the Alternative, for

Summ. J., ECF No. 26 (Def.’s Suppl.”), and plaintiff has responded, see Pl.’s Response to Def.’s

Suppl., ECF No. 28 (“Pl.’s Suppl. Opp’n”). Upon consideration of the supplemental record, and

for the reasons explained below, the Court will grant summary judgment to the defendant on the

remaining issue and enter judgment accordingly.

                                       I. BACKGROUND

       The initial decision sets out the events forming basis of this action, most of which will

not be repeated here. The relevant facts are as follows. Plaintiff worked as a secretary at the

Securities and Exchange Commission for a little over 10 years. Stewart, 61 F. Supp. 3d at 123.

She suffered from an upper respiratory condition that restricted her breathing. See id. at 124.

Plaintiff’s health care provider recommended a well-ventilated work environment and the use of

a HEAP filter purifier. Id.



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       In May 2011, plaintiff requested reasonable accommodations in the form of teleworking,

liberal leave, and an air purifier and humidifier. Pl.’s Suppl. Opp’n, Ex. H at ECF pp. 57-58

(Laura Stomski April 9, 2012 letter summarizing history of plaintiff’s accommodation requests)

(hereafter “Apr. 9, 2012 letter”). In September 2011, plaintiff was approved for a period of six

months to take unscheduled leave in the form of accrued leave or leave without pay when she

needed to recuperate from “flare-ups” that left her ill or severely congested. Stewart, 61 F. Supp.

3d at 124; Apr. 9, 2012 letter. In approving the “alternative” accommodation, the agency’s

Program Disability Officer (DPO), Laura Stomski, denied plaintiff’s request to telework,

reasoning that “a significant portion of your essential duties cannot be performed remotely.”

Def.’s Summ. J. Mot., Ex. O, ECF No. 9-14 (Laura Stomski Sept. 22, 2011 letter at 2 (hereafter

“Sept. 22, 2011 letter”). Stomski also informed plaintiff that “[w]hile your physician

recommended that you work in an environment that is well ventilated, the documentation does

not specify that you need an air purifier/humidifier at work to manage your condition.

Nevertheless, the DPO will contact Facilities and ask that air quality of your work area be

checked and that any problems be addressed.” Id.

       “[P]laintiff had an air purifier for at least five years.” Pl.’s Suppl. Opp’n at 1. In January

2012, however, plaintiff requested and was granted an upgraded air purifier. Def.’s Suppl. at 11

(citing Exs. D, E, F, January 2012 e-mail exchange). In April 2012, defendant denied plaintiff’s

request to extend and modify the September 2011 leave accommodation upon questioning her

medical documentation. See Apr. 9, 2012 letter. Plaintiff submitted additional medical

documentation dated May 10, 2012, and tendered her resignation by letter dated May 17, 2012,

stating her last day of duty as June 1, 2012. Stewart, 61 F. Supp. 3d at 126.




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        The remaining claim to be resolved stems from evidence in the record that plaintiff

requested and was denied the accommodation of relocation of her work space from an assigned

cubicle to a private office. Based on such evidence, the Court determined that plaintiff had

presented a plausible reasonable accommodation claim under the Rehabilitation Act that neither

party had addressed. Id. at 133-34. Consequently, the Court denied defendant’s motion as to

that aspect of plaintiff’s discrimination claim and directed the parties to supplement the record.

Id. at 134.

                                    II. LEGAL STANDARD

        The Rehabilitation Act, which incorporates the standards of the Americans with

Disabilities Act, requires federal employers to provide “reasonable accommodations to the

known physical or mental limitations of an otherwise qualified individual with a disability . . .

unless [the employer] can demonstrate that the accommodation would impose an undue hardship

on the operation of the [employer’s] business[.]” 42 U.S.C. § 12112(b)(5)(A). “To establish that

the defendant failed to provide a reasonable accommodation, the plaintiff must show that: (1) she

has a disability within the meaning of the statute; (2) the defendant had notice of her disability;

(3) she could perform the essential functions of the employment position with or without

reasonable accommodation; and (4) the defendant refused to make the accommodation.”

Bonnette v. Shinseki, 907 F. Supp. 2d 54, 77 (D.D.C. 2012). “If the plaintiff establishes a prima

facie case of failure to provide reasonable accommodation, then it is up to the employer to

demonstrate that the accommodation would have imposed an undue burden on its business; the

ultimate burden, however, remains with the plaintiff.” Id. See also Barth v. Gelb, 2 F.3d 1180,

1185-86 (D.C. Cir. 1993) (explaining that the burden-shifting framework of McDonnell Douglas




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Corp. v. Green, 411 U.S. 792 (1973), does not apply to reasonable accommodation claims and

that such claims should be tested through the “application of traditional burdens of proof.”).

       In order “[t]o determine what an appropriate, reasonable accommodation would be, an

agency should ‘initiate an informal, interactive process with the qualified individual with a

disability in need of accommodation.’ ” Morris v. Jackson, 994 F. Supp. 2d 38, 47 (D.D.C.

2013) (quoting 29 C.F.R. § 1630.2(o)(3)) (citation omitted). “The process contemplated is a

‘flexible give-and-take’ between employer and employee ‘so that together they can determine

what accommodation would enable the employee to continue working.’ ” Ward v. McDonald,

762 F.3d 24, 32 (D.C. Cir. 2014) (quoting EEOC v. Sears, Roebuck & Co., 517 F.3d 789, 805

(7th Cir. 2005)). However, “an employer is not required to provide an employee that

accommodation [s]he requests or prefers, the employer need only provide some reasonable

accommodation,” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998) (quoting Gile

v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996)), and “the employee has the burden of

identifying reasonable accommodations,” Graffius v. Shinseki, 672 F. Supp. 2d 119, 126 (D.D.C.

2009) (citing Chinchillo v. Powell, 236 F. Supp. 2d 18, 23-24 (D.D.C. 2003)).

       The Court of Appeals has defined a “reasonable accommodation” as one “employing a

method of accommodation that is reasonable in the run of cases . . . .” Barth, 2 F.3d at 1187

(emphasis in original). “[A]ccommodations are reasonable if they allow the employee to

perform the essential functions of the job without imposing undue hardship on the employer.”

Norden v. Samper, 503 F. Supp. 2d 130, 145 (D.D.C. 2007). “The plaintiff bears the burden to

show that the requested accommodation is reasonable on its face—the sort of accommodation

that normally occurs.” Morris, 994 F. Supp. 2d at 47 (citation omitted). “When a plaintiff can

make that showing, the defendant must demonstrate special circumstances that the



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accommodation would impose an undue hardship.” Id. “Undue hardship” constitutes “an action

requiring significant difficulty or expense.” 42 U.S.C. § 12111(10)(A). “To survive summary

judgment, [a plaintiff] must demonstrate that [a defendant] failed to provide reasonable

accommodations that would have allowed her to perform her essential employment

functions[.]”Bonnette, 907 F. Supp. 2d at 78. It is only after that showing that the defendant

must “show that such accommodations would have caused an undue burden.” Id.

       “An underlying assumption of any reasonable accommodation claim is that the plaintiff-

employee has requested an accommodation which the defendant-employer has denied.”

Flemmings v. Howard Univ., 198 F. 3d 857, 861 (D.C. Cir. 1999). Hence, “[t]o create an issue

for the jury” plaintiff must point to “sufficient evidence” in the record showing that she

requested an accommodation and “that, after the request, [defendant] refused to make an

accommodation.” Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1308 (D.C. Cir. 2010); see

Edwards v. U.S. EPA, 456 F. Supp. 2d 72, 102 (D.D.C. 2006) (“[T]he dispositive issue is

whether [plaintiff] requested and was denied an accommodation.”). In addition, “when an

employee seeks a workplace accommodation, the ‘accommodation must be related to the

limitation that rendered the person disabled.’ ” Adams v. Rice, 531 F.3d 936, 944 (D.C. Cir.

2008) (quoting Nuzum v. Ozark Auto. Distribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005)); see id.

at 953 (quoting Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996) (“[T]he

ADA requires employers to reasonably accommodate limitations, not disabilities.”).

                                        III. DISCUSSION

       Defendant does not dispute that plaintiff has a known disability within the meaning of the

ADA. Thus, the Court finds no genuine issue presented on the first and second requirements of

the reasonable accommodation claim.



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       Defendant first argues that plaintiff’s failure to follow known procedures for requesting

an accommodation defeats the claim. See Def.’s Suppl. at 7-9. But defendant has focused on

evidence showing the deficiencies in plaintiff’s request for leave under the Family Medical

Leave Act (“FMLA”), see Def.s’ Suppl. at 1-9, which was eventually granted but, more

importantly, is no longer at issue. See Stewart, 61 F. Supp. 3d at 134-35 (granting summary

judgment to defendant on the FMLA claim). Defendant has not identified “a fixed set of

procedures” it contends plaintiff failed to follow in making the accommodation request, Davis v.

George Washington Univ., 26 F. Supp. 3d 103, 114 (D.D.C. 2014), nor has defendant pointed to

any place in the perplexing record for the Court to draw an inference one way or the other.

Furthermore, plaintiff counters that she “did everything that was required for FMLA and/or

Reasonable Accommodations in 2012, as done in the Previous Year of 2011, when Plaintiff was

approved.” Pl.’s Suppl. Opp’n at 5. Accordingly, the Court finds that a genuine factual dispute

exists to preclude summary judgment for defendant on this argument.

       Although the Court focused on plaintiff’s request for relocation to a private office,

Stewart, 61 F. Supp. 3d at 133-34, defendant argues next that the relocation request and two

others--to telework and for an air purifier-- were “appropriately denied.” Def.’s Supp. at 9; see

Apr. 9, 2012 letter (plaintiff requested accommodations “in the form of telework, the ability to be

granted leave through the leave share program, and an office environment with an air purifier

and humidifier”). The Court will address each request.

       1. Teleworking

       Plaintiff’s request to telework is a non-starter. Defendant argues that given the nature of

plaintiff’s job, she cannot show that she could perform the essential functions of her position

from home. Def.’s Suppl. at 9-10. Indeed, plaintiff admits that as a secretary, her “main duties



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were[:] travel and meeting coordinator, timekeeper, maintain[ing] supervisor’s calendar,

track[ing] incoming correspondences, answer[ing] phone calls, sort[ing]/distribut[ing] daily mail,

log[ging] and greet[ing] visitors to meetings, maintain[ing] filing systems [,] and [acting as] a

liaison to a staff of 30 or more to resolve administrative issues and fulfill many other

administrative requests.” Stewart, 61 F. Supp. 3d at 123-24 (quoting Pl.’s Statement of Material

Facts). And she does not complain about the alternative accommodation of liberal leave, which

she sought to extend. Moreover, in denying plaintiff’s request to telework, the agency’s

disability officer observed that “a significant portion of [plaintiff’s] essential duties cannot be

performed remotely.” Sept. 22, 2011 letter at 2.

       No reasonable juror presented with the foregoing evidence, particularly plaintiff’s own

description of her job, could find that plaintiff could have performed the essential functions

remotely. Hence, the Court will grant summary judgment to defendant on the accommodation

claim arising from the telework request.

       2. Air Purifier

       Contrary to defendant’s framing of the argument, the record establishes that the agency

did in fact provide plaintiff with an air purifier promptly in response to her request on January 3,

2012, for “an upgraded air purifier.” Def.’s Suppl. at 11 (citing Exs. D, E, F, e-mail exchanges).

Plaintiff complains now that instead of an upgraded air purifier she “received the same newly

desk air purifier as [she] had been using for years,” which “didn’t medically assist [because it ]

was not one up to par . . . that pulls dust, mold and mildew, bacteria to improve air quality

environment” like the air purifiers in her home. Pl.’s Suppl. Opp’n at 1. But plaintiff points to

nothing in the record from which a reasonable juror could find or infer that defendant was aware




                                                   7
of the air purifier’s inadequacies, or plaintiff’s dissatisfaction with it, at the crucial time in

January through March 2012 and denied any request for a replacement. 1

        3. Private Office

        More problematic is plaintiff’s request to be moved into a private office. Defendant does

not dispute that plaintiff asked her supervisor in May 2012 for assistance in moving her from her

assigned work area “as part of the reasonable accommodations.” Stewart, 61 F. Supp. 3d at 133

(quoting Pl.’s Opp’n). In addition, the agency acknowledged plaintiff’s request to be moved into

a private office when it was considering her request to extend the “current [leave]

accommodation” approved for six months in September 2011. Apr. 29, 2012 letter at 1. But the

evidence in the record shows that defendant denied the extension because plaintiff had failed to

provide the updated medical documentation defendant needed in order to address the extension

“or [ ] any other requests, such as [plaintiff’s] request to move into a private office[.]” Id. at 1-2.

Plaintiff submitted an updated medical form, dated May 10, 2012, and soon after tendered her

resignation letter dated May 17, 2012. See Stewart, 61 F. Supp. 3d at 125-26; see also id. at 132-

33 (granting summary judgment to defendant on constructive discharge claim).

        During the interactive process, see 29 C.F.R. § 1630.2(o)(3), “ ‘[a] party that fails to

communicate, by way of initiation or response, may be acting in bad faith,’ ” and when “ ‘the

interactive process breaks down courts should attempt to isolate the cause of the breakdown and

then assign responsibility to the culpable party.’ ” Morris, 994 F. Supp. 2d at 47 (quoting

Woodruff v. LaHood, 777 F. Supp. 2d 33, 41, 42 (D.D.C. 2011)) (other citation and internal



1
    According to defendant, in an email dated January 4, 2012, plaintiff, upon learning that her
request was approved responded: “Thanks Much!!! This upgraded air purification will greatly
assist my health issue in my working area.” Defendant cites Exhibit F but that document is not in
the record. Def.’s Suppl. at 11. To complete the record, defendant is granted leave to file that
document within ten days after this decision.

                                                    8
quotation marks omitted). Under the present circumstances, “to establish that her request was

‘denied,’ [plaintiff] must show either that [defendant] in fact ended the interactive process or that

it participated in the process in bad faith.” Ward, 762 F.3d at 32. Plaintiff can show neither. It

is reasonable to conclude from this record that the interactive process broke down or was “cut

short,” Buie v. Berrien, Civ. No. 13-1181 (ABJ), ___ F. Supp. 3d ____, ____, 2015 WL

1404576, at *8 (D.D.C. Mar. 27, 2015), when plaintiff tendered her resignation so soon after

supplying the requested updated medical documentation. Hence, plaintiff cannot show unlawful

discrimination and has no one to blame but herself. See Ward, 762 F. 3d at 35 (“Ward is the

author of her misfortune—she and the BVA parted ways not because the BVA discriminated or

retaliated against her based on her disability but because she acted precipitately[,]” by resigning

before the agency could obtain sufficient documentation to act on her request).

       Defendant argues in any event that the upgraded air purifier was a reasonable alternative

accommodation, Def.’s Suppl. at 12, which the record supports. “[T]he employer need only

provide some reasonable accommodation,” Aka, 156 F.3d at 1305, which, in this case, was one

that plaintiff had requested and had voiced no dissatisfaction with at the relevant time period.

Consequently, the Court finds that the bedrock assumption “that the plaintiff-employee [ ]

requested an accommodation which the defendant-employer [ ] denied,” Flemmings, 198 F. 3d at

861, is defeated and defendant is entitled to judgment as a matter of law.

                                         CONCLUSION

       For the foregoing reasons, defendant’s motion for summary judgment on the remaining

reasonable accommodation claim is granted. A separate final order accompanies this

Memorandum Opinion.

                                              __________s/s__________________
                                              COLLEEN KOLLAR-KOTELLY
DATE: July 31, 2015                           United States District Judge

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