                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA
____________________________________
                                         )
WILLIE D. BELTON,                        )
                                         )
                        Plaintiff,       )
                                         )
        v.                               )    Civil Action No. 13-628 (RBW)
                                         )
ROBERT D. SNYDER,                        )
in his official capacity as              )
Acting Secretary of the                  )
U.S. DEPARTMENT OF VETERANS              )
AFFAIRS,                                 )
                                         )
                        Defendant.       )
____________________________________ )

                                       MEMORANDUM OPINION

        The plaintiff, Willie D. Belton, who was employed by the Department of Veterans

Affairs (“Veterans Affairs”) until his termination in December 2011, claims that the defendant,

Robert D. Snyder, in his official capacity as the Acting Secretary of Veterans Affairs,1 engaged

in discriminatory and retaliatory acts in violation of the Rehabilitation Act of 1973, 29 U.S.C. §

794 (2012), in connection with the plaintiff’s request for a reasonable accommodation for his

alleged disability and his subsequent termination. See generally Complaint (“Compl.”) ¶¶ 36–

41. Currently pending before the Court is the defendant’s Motion for Summary Judgment

(“Def.’s Mot.”) and his accompanying Memorandum in Support of Motion for Summary

Judgment, ECF No. 28 (“Def.’s Mem.”), along with the defendant’s Supplemental Motion for

Summary Judgment, ECF No. 34 (“Def.’s Supp. Mot.”), which the Court permitted the




1
 Pursuant to Federal Rule of Civil Procedure 25(d), Acting Secretary Robert D. Snyder is automatically substituted
for the prior Secretary of Veterans Affairs.
defendant to file on September 1, 2015. Upon careful consideration of the parties’ submissions,

the Court concludes that summary judgment must be granted in the defendant’s favor.2

                                               I.    BACKGROUND

         The lengthy background of this case, which involves events spanning several years

embodied in a series of letters, is based on the following facts, which are undisputed unless

otherwise noted.3 The plaintiff was employed as an electrician at a Veterans Affairs medical

facility located in the District of Columbia. Compl. ¶¶ 5–6. “On or about April 5, 2003, [the

p]laintiff submitted a handwritten request for a non-specific reasonable accommodation due to

[his] job related illness.” Def.’s Facts ¶ 1; see Def.’s Mem., Exhibit (“Ex.”) 1 at D000060.4

Shortly thereafter, on April 16, 2003, the plaintiff’s attorney faxed a handwritten memorandum

to the plaintiff’s supervisors, Pedro Garcia and Michael Slagle, stating that it enclosed a one-

page “medical report f[or] Willie Belton from his doctor recommending [a] specific work

assignment,”5 Def.’s Facts ¶ 2, which was accompanied by the one-page report, Def.’s Mem.,

Ex. 2 at D000059. The medical report, signed by Stefan Lund, Ph.D., indicated that the plaintiff

received treatment on April 11, 2003, that his diagnosis was “confidential,” but that “[i]t [was]


2
  In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the defendant’s answer to the Complaint (“Answer”); (2) the Defendant’s Statement of Undisputed
Material Facts (“Def.’s Facts”); (3) the Memorandum of Points and Authorities in Support of Plaintiff’s Opposition
to Defendant’s Motion for Summary Judgment (“Pl.’s Opp’n”); (4) the Plaintiff’s Statement of Material Facts in
Dispute (“Pl.’s Facts”); (5) the Defendant’s Supplemental Motion for Summary Judgment and Reply to Plaintiff’s
Opposition to Defendant’s Motion for Summary Judgment (“Def.’s Supp. Mem.”); (6) the Defendant’s Response to
Plaintiff’s Statement of Material Facts in Dispute (“Def.’s Resp. to Pl.’s Facts”); (7) the Plaintiff’s Response to the
Court’s Order to Show Cause (“Pl.’s Show Cause Resp.”); and (8) the Defendant’s Reply to Plaintiff’s Response to
the Court’s Show Cause Order [] (“Def.’s Show Cause Reply”).
3
  Pursuant to Local Civil Rule 7(h)1), the Court “assume[s] that facts identified by the moving party in its statement
of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition
to the motion.” LCvR 7(h)(1) (emphasis added).
4
 Although the plaintiff’s handwritten request is dated April 5, 2003, it is stamped “Received on [May 5, 2003].”
Def.’s Mem., Ex. 1 at D000060.
5
 It appears that at the relevant time, Garcia was the chief of Facilities Management at the Veterans Affairs facility
where the plaintiff worked. See Def.’s Mem., Ex. 3 at D000052.

                                                           2
strongly recommended that [the plaintiff] . . . be assigned to do work as an electronics technician

in the Biomedical section.” Def.’s Mem., Ex. 2 at D000059; see also Def.’s Facts ¶ 2.

       In a letter dated May 9, 2003, regarding “the request from [the plaintiff] received on May

5, 2003,” Mr. Garcia stated, “the information . . . provided is insufficient for . . . [Veterans

Affairs] to determine if you are currently a qualified individual with a disability” and that

“[w]ithout the necessary medical documentation, . . . [Veterans Affairs] cannot make an

informed assessment of [the plaintiff’s] request for an accommodation.” Def.’s Mem., Ex. 3 at

D000051; see also Def.’s Facts ¶ 3. The letter set forth a list of the “information needed to

determine if [the plaintiff was] a qualified individual with a disability, including a detailed

description of [the plaintiff’s] exact medical condition(s),” “[c]linical findings,” “[a]n

explanation of the impact of the stated medical condition on [the plaintiff’s] overall health and

activities,” and “[a] detailed description of the precise accommodation recommended by [the

plaintiff’s] health care provider, including the basis of the recommendation and an explanation of

how the proposed accommodation will allow [the plaintiff] to perform the particular job duty at

issue.” Def.’s Mem., Ex. 3 at D000051.

       Several months later, on or about August 27 or 28, 2003, after “request[ing] sick leave

and provid[ing] his supervisor a doctor’s note,” and alleging an illness “due to acute agitation

from workplace stress,” the plaintiff “never returned to work.” See Def.’s Facts ¶¶ 4–5; see also

Def.’s Mem., Ex. 4 at D000050. On August 28, 2003, a medical doctor, Daniel O’Connell,

signed an attending physician’s report finding that the plaintiff suffered from “depression,

tension, [and] agitation in [the] setting of work stress” caused or aggravated by “perceived

harassment and threats by supervisors.” Pl.’s Opp’n, Ex. 5. The report indicated that the




                                                   3
plaintiff had been treated with medication and psychotherapy. Id. But see Def.’s Response to

Pl.’s Facts at 1 (disputing the plaintiff’s characterization of the attending physician’s report).

       About a month later, on September 30, 2003, the plaintiff submitted a handwritten letter

addressed to a “human resources specialist” and regarding “requested information,” which

enclosed a two-paragraph letter from Dr. Lund, who is identified as a psychotherapist. Def.’s

Mem., Ex. 5 at D000049. The plaintiff’s letter recounted the following:

       On August 27, 2003, I was working on the condinsate [sic] return system, I rebuilt
       the whole system with new operating parts, I had to modify certain things because
       the parts were no longer available. I got the system up and running and [it] is still
       on line to this date. I was working on the other condinsate [sic] system getting it
       back online. I showed [illegible] a control panel operator that I had gotten half of
       that system on line but it was still a little bit more that I had to do. I was trying to
       explain this to my superior Mike Slagle who refused to listen. . . . [T]his is one of
       those rageful [sic] moments I’ve had within the pas[t] [two] years. I’m not
       employed b[y] anyone and I am currently seeking mental health to help me deal
       with this stressful environment. On August 27 03 from 1130 to 330 I took sick
       leave to August 29, 03[,], Annual leave from Sept 2, 03 to Sept 9, 03[, and] Leave
       without pay from Sept 10, 03 to the present.

Def.’s Mem., Ex. 5 at D000047–48. In addition, the attached letter from Dr. Lund, dated

September 26, 2003, stated that the plaintiff “has experienced significant stress from his work

environment” “since [December 20, 2001],” that the plaintiff’s efforts “to develop strategies by

which the situation at work would be more tolerable” were “unsuccessful,” and as a result, “we

have been forced to recommend disability from [August 27, 2003].” Id. at D000049; see Def.’s

Facts ¶ 7 (Dr. Lund “recommended that [the p]laintiff be placed on disability effective August

27, 2003”). Shortly thereafter, in late September 2003, the plaintiff filed a worker’s

compensation claim with the United States Department of Labor. Def.’s Facts ¶ 6.

        On October 7, 2003, Mr. Garcia sent a letter to the plaintiff informing him that he had

been absent without leave since September 10, 2003, and directing the plaintiff to return to work.

See Def.’s Facts ¶ 8; Def.’s Mem., Ex. 6 at D000046. The letter also cautioned that “[c]harges of

                                                  4
[absent without leave] can be used as a basis for disciplinary action being initiated against [the

plaintiff], up to and including removal from emplacement with . . . Veterans Affairs.” Def.’s

Mem., Ex. 6 at D000046. The plaintiff responded in an October 20, 2003 letter stating that he

had previously requested leave without pay pending the Department of Labor’s review of his

worker’s compensation case, that he was renewing that request, and that he was “unable to return

to a duty status at this time . . . .” Def.’s Mem., Ex. 7 at D000044; see also Def.’s Facts ¶ 9.

       The plaintiff was asked in response to his letter to provide more detailed medical

information because the September 2003 note from Dr. Lund was “not clear enough to make a

determination of [the plaintiff’s] disability.” See Def.’s Mem., Ex. 8 at D000042–43 (November

3, 2003 letter requesting “detailed medical documentation” and providing a list of the

documentation to be provided by November 24, 2003); see also Def.’s Facts ¶ 10. The response

also indicted that the plaintiff’s status had been restored to “leave without pay.” Def.’s Mem.,

Ex. 8 at D000043. On November 20, 2003, the plaintiff provided a one-page report indicating

that the plaintiff was treated by Dr. O’Connell on November 12, 2003, who concluded that the

plaintiff’s return to regular work was “uncertain” and advised that the plaintiff needed

“accommodation in [the] form of [a] supporting work environment free from harassment.”

Def.’s Mem., Ex. 10 at D000039; see also Def.’s Facts ¶ 12. In the interim, however, Veterans

Affairs, in a letter dated November 13, 2003, denied the plaintiff’s May 2003 reasonable

accommodation request due to the lack of medical documentation “required to determine if [the

plaintiff was] a qualified individual with a disability.” Def.’s Mem., Ex. 9 at D000041.

       Almost a year later, on October 12, 2004, Mr. Garcia sent a letter to the plaintiff stating

that the plaintiff’s worker’s compensation claim before the Department of Labor had been

resolved earlier that year in March 2004, but that the plaintiff failed to make contact with his



                                                  5
supervisors or return to work. See Def.’s Facts ¶ 15; see also Def.’s Mem., Ex. 11 at D000035.

Mr. Garcia directed the plaintiff to return to work within two weeks, and cautioned that “failure

to do so will result in disciplinary action . . . up to and including removal from

employment . . . .” Def.’s Mem., Ex. 11 at D000035. The plaintiff responded in a letter stating

that, in accordance with his doctor’s assessment, he was “disabled, until further notice” and that

he would “notify [Mr. Garcia] when [his] doctor’s assessment is different than expressed . . . .”

Def.’s Mem., Ex. 12 at D000031; see also Def.’s Facts ¶ 16; Pl.’s Facts ¶ 5; Pl.’s Opp’n, Ex. 12.

Included with the plaintiff’s response was the August 2003 attending physician’s report by Dr.

O’Connell. See Pl.’s Opp’n, Ex. 12.

       Mr. Garcia again requested more detailed medical evidence from the plaintiff to

substantiate the plaintiff’s claimed disability in a letter dated January 3, 2005, see Def.’s Facts

¶ 17; Def.’s Mem., Ex. 13 at D000023–24; Pl.’s Facts ¶ 6, and warned the plaintiff that his

“absences had continued beyond a reasonable time” and that “adverse action may be taken . . . .”

Def.’s Mem., Ex. 13 at D000023. The plaintiff responded in a January 25, 2005 letter, stating

that he was “not trying to retire at this time,” but instead was “requesting [a] reasonable

accommodation in the matter in which both of [his] physicians ha[ve] suggested,” Def.’s Mem.,

Ex. 14 at D000018; see also Def.’s Facts ¶ 18; Pl.’s Facts ¶ 7, and with the letter submitted a

one-page verification of treatment report signed by Dr. O’Connell, Pl.’s Opp’n, Ex. 14. The

verification of treatment report stated that the plaintiff’s “prognosis was favorable once [the]

recommended accommodation has been provided,” that the plaintiff could “resume regular

work . . . when [the] recommended accommodation has been provided,” and “strongly

recommended that [the plaintiff] be transferred away from the [Veterans Affairs] medical center

and reassigned in an administrative capacity.” Id.



                                                  6
       The director of the Veterans Affairs medical center, Sanford Garfunkel, having received

the plaintiff’s January 25, 2005 letter, informed the plaintiff that he “ha[d] not provided the

proper medical documentation for . . . [Veterans Affairs] to make a reasonable accommodation

determination” and that he had failed to return to duty as directed by Garcia on several previous

occasions. Def.’s Mem., Ex. 16 at D000014; see also Def.’s Facts ¶ 20. The letter also informed

the plaintiff that “[Veterans Affairs] will forward the release of medical information [the

plaintiff] mailed to us to [the plaintiff’s] healthcare provider and give them thirty days upon

receipt to produce the requested information,” and that his accommodation request would be

reviewed upon receipt of that information. Def.’s Mem., Ex. 16 at D000015. A separate letter

was also sent to Dr. O’Connell seeking further information regarding the plaintiff’s

accommodation request, but a response was not provided. See Def.’s Facts ¶¶ 21–22; Def.’s

Mem., Ex. 17 at D000012–13 (March 10, 2005 letter seeking within thirty days additional

information from Dr. O’Connell).

       After the plaintiff denied in a letter dated April 19, 2005, knowing that the medical

information he had already provided was deemed insufficient, see Def.’s Facts ¶ 23; Def.’s

Mem., Ex. 18 at D000010 (“[T]his is the first time that I have been made aware that the medical

docume[nta]tion that I submitted from my physicians wasn’t enough to make a determination”),

Mr. Garfunkel informed the plaintiff in a letter dated May 16, 2005, that his absences were a

“separate issue from [his] request for [a] reasonable accommodation” and that “[a]ny decision

regarding the [absent without leave charges] will not be delayed because of [the] request for a

reasonable accommodation,” Def.’s Mem., Ex. 19 at D000009; see also Def.’s Facts ¶ 24.

       On August 28, 2005, now two years after the plaintiff stopped reporting for work, the

plaintiff provided a two-page letter from Dr. O’Connell that described the plaintiff’s medical



                                                  7
condition, treatment, and prognosis. See Def.’s Facts ¶ 26; Def.’s Mem., Ex. 21 at D000003–04;

Pl.’s Facts ¶¶ 8–9. Dr. O’Connell’s letter stated that the plaintiff had been his patient since

December 2001, was diagnosed with “Adjustment Disorder with Mixed Anxiety and

Depression,” and was “maintained on a regimen of antidepressant/anxiolytic medications.”

Def.’s Mem., Ex. 21 at D000003. Dr. O’Connell also provided the following additional

information:

       Prominent symptoms when first seen included pervasive depression, persistent
       anxious ruminations, diminished energy level, poor concentration, and sleep
       disturbance. Symptoms had arisen in context of a work situation in which he felt
       himself to have been subjected to unfair and prejudicial treatment over an extended
       period of time by his supervisor[.] The situation eased when he was assigned to a
       different work detail, but was again exacerbated in the spring of 2003 when he was
       reassigned to work under the supervisor with whom he had experienced earlier
       conflict. He was reportedly threatened by a supervisor that harm would come to
       him if he did not rescinded the OEO complaint that he had filed regarding the
       perceived prejudicial treatment. Several recommendations were submitted from
       this office recommending reassignment away from the hostile work setting to a
       supporting working environment. In the absence of such an accommodation, it has
       not been possible for Mr. Belton to return to the workplace for the past 16 months[.]
       Contemplating such a return regularly precipitates a recurrence of the anxiety and
       depression, which otherwise have been held in check by the medication and
       psychotherapy[.] His phobic response to the workplace at this point extends to the
       entire medical center.

Def.’s Mem., Ex. 21 at D000003. Dr. O’Connell renewed his recommendation that the plaintiff

be reassigned to “an administrative post away from the medical center itself.” Id. at D000004.

Dr. O’Connell also recommended that the plaintiff return to work on a “half-time basis initially,”

and opined that “[a]fter a period of some weeks . . . it is foreseen that the workday could be

expanded to full-time.” Id.

       After receiving Dr. O’Connell’s letter, the Veterans Affairs’ equal opportunity office

attempted to obtain “clarification on an issue and some additional information,” specifically,

whether the plaintiff’s “combination of medications sufficiently controls his condition enough to



                                                  8
allow him to work” and “whether there is a timeframe on the proposed accommodation or if his

condition is permanent.” Def.’s Mem., Ex. 22 (October 25, 2005 letter addressed to Dr.

O’Connell); see also Def.’s Facts ¶ 27; Pl.’s Facts ¶ 10. Dr. O’Connell never provided a

response. Def.’s Facts ¶ 28.

       Sometime thereafter, the plaintiff contacted a congressman seeking his assistance

regarding the plaintiff’s treatment by the Department of Veterans Affairs and provided the

congressman with the documentation he had provided to the Department of Labor concerning his

situation. See Pl.’s Facts, Ex. 13, Pl.’s Opp’n, Ex. 26 at Belton002–Belton008 (letter from the

plaintiff to former Congressman Albert R. Wynn). Although the letter itself is undated, it

appears from the congressman’s response that the plaintiff contacted him sometime prior to June

2008. See Pl.’s Opp’n, Ex. 26 at Belton009 (June 28, 2007 letter from former Congressman

Wynn to a secretary of congressional affairs at the Department of Labor regarding the plaintiff).

In addition, the plaintiff appears to have contacted a Maryland Senator regarding his case

sometime prior to June 2009. See Pl.’s Opp’n, Ex. 27 at Belton064 (June 28, 2009 letter from

the director of the Veterans Affairs medical center responding to former Senator Barbara

Mikulski’s “inquiry on behalf of [her] constituent, Mr. Willie D. Belton”).

       It appears that, around the same time the plaintiff contacted Senator Mikulski, the

defendant attempted to remove the plaintiff from his employment under the “abandonment of

position doctrine,” which was found by the Merit Systems Protection Board (the “Board”) to be

inappropriate due to the plaintiff’s efforts to obtain assistance from lawmakers, which the Board

viewed as the plaintiff’s willingness to return to work and was thus inconsistent with terminating

the plaintiff’s employment on the basis of abandonment. Pl.’s Opp’n, Ex. 30 (Final Order,

Belton v. Dep’t of Veterans Affairs, DC-0752-10-0805-1-1 (M.S.P.B. 2011) at 2; see also id.,



                                                9
Ex. 31 (August 26, 2009 letter from the plaintiff to the Veterans Affairs medical center asking,

“When can I report for duty?” and enclosing Dr. Frank J. Genova’s 2007 medical report).

       Two months later, in October 2011, the defendant proposed the termination of the

plaintiff’s employment due to his absence from work without leave and failure to comply with

leave procedures since 2003. See Def.’s Mem., Ex. 23 (letter from Veterans Affairs to the

plaintiff proposing his termination due to his absence without leave and failure to comply with

leave procedures). In December 2011, the defendant issued its final decision terminating the

plaintiff’s employment. See id., Ex. 24 (letter from Veterans Affairs to the plaintiff terminating

his employment).

       The plaintiff contends that he “has exhausted his administrative remedies and timely filed

this complaint within 30 days after the receipt of the Equal Employment Opportunity

Commission’s decision on April 2, 2013.” Compl. ¶ 2. The plaintiff seeks an award of “lost

wages and benefits, front pay and benefits, $300,000 in compensatory damages for pain and

suffering, mental anguish, and emotional distress on each count [of the Complaint], interest,

costs, and the amount of tax on any award, and reasonable attorney’s fees.” Id. at 7.

                                II.    STANDARD OF REVIEW

       Before granting a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56, a court must find 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). “A fact is material if it

might affect the outcome of the suit under the governing law, and a dispute about a material fact

is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)).



                                                 10
       When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to

be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at

255 (citation omitted). “Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling

on a motion for summary judgment . . . .” Id. The movant has the burden of demonstrating the

absence of a genuine issue of material fact and that the non-moving party “fail[ed] 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 responding to a summary judgment motion, the non-moving party “must do more than

simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving party

must not rely on “mere allegations or denials . . . but . . . must set forth specific facts showing

that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (second omission in

original) (citation and internal quotation marks omitted). “The mere existence of a scintilla of

evidence in support of the [non-moving party’s] position [is] insufficient” to withstand a motion

for summary judgment, but rather “there must be [some] evidence on which the jury could

reasonably find for the [non-movant].” Id. at 252.




                                                  11
                                        III.    ANALYSIS

       A.      The Plaintiff’s Disability Discrimination and Failure to Accommodate
               Claims (Counts I and II of the Complaint)

               1.      Whether the Plaintiff’s Failure to Accommodate Claim Is Barred by
                       Res Judicata

       In its March 15, 2016 Order, the Court directed the plaintiff to demonstrate why his

failure to accommodate claim should not be barred by res judicata, given that he previously

asserted that Veterans Affairs failed to provide reasonable accommodations for his severe

depression and anxiety in a prior action that was dismissed by another member of this Court.

See Order at 1–3 (Mar. 15, 2016), ECF No. 42; see also Compl. ¶¶ 1, 11–16, 21–30; Plaintiff’s

Amended Complaint ¶¶ 20–21, Belton v. Principi, Civil Action No. 04-704 (EGS) (Mar. 29,

2005). Res judicata bars a subsequent lawsuit “if there has been prior litigation (1) involving the

same claims or cause of action, (2) between the same parties or their privies, and (3) there has

been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.” Porter v.

Shah, 606 F.3d 809, 813–14 (D.C. Cir. 2010) (quoting Capitol Hill Grp. v. Pillsbury, Winthrop,

Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C. Cir. 2009)). Here, the plaintiff’s failure to

accommodate claim is not barred by res judicata because, although his amended complaint in the

prior action contained similar factual assertions, that court did not have jurisdiction to render

judgment on a claim arising from the facts in this case.

       A court must dismiss a Rehabilitation Act claim for lack of subject-matter jurisdiction if a

plaintiff has failed to exhaust his administrative remedies. See Spinelli v. Goss, 446 F.3d 159,

162 (D.C. Cir. 2006). A plaintiff fails to exhaust his administrative remedies if he does not

initiate contact with an equal employment counselor within forty-five days of the alleged

discriminatory conduct. See Doak v. Johnson, 19 F. Supp. 3d 259, 270 (D.D.C. 2014). When



                                                 12
the prior case was pending, the plaintiff had not exhausted his administrative remedies with

respect to his claim for failure to accommodate because he had not timely filed a complaint with

the Equal Employment Opportunity Commission (“EEOC”) based on the facts underlying that

claim. See Defendant’s Renewed Motion to Dismiss, and in the Alternative, Motion for

Summary Judgment, Ex. 2 (Agency’s Motion for Consolidation) at 2, Belton v. Principi, Civil

No. 04-704 (EGS) (May 19, 2005) (noting that while the plaintiff lodged an EEOC complaint

regarding his failure to accommodate claim on September 29, 2003, the EEOC dismissed the

complaint for failing to comply with applicable time limits). Thus, the prior court lacked

jurisdiction to adjudicate the plaintiff’s failure to accommodate claim, and as a result, res

judicata does not bar the plaintiff’s failure to accommodate claim in this case. See Howard v.

Gutierrez, 474 F. Supp. 2d 41, 51 (D.D.C. 2007) (holding that res judicata did not bar plaintiff’s

Rehabilitation Act claim where, if she had pleaded the claim in her initial Title VII complaint, it

would have been dismissed without prejudice for failure to exhaust her administrative remedies).

Accordingly, the Court will discharge the show cause order and address the merits of the

plaintiff’s claims.

                2.     Whether the Plaintiff Has a “Disability”

        The Rehabilitation Act prohibits federal agencies from discriminating against employees

on the basis of a disability. 29 U.S.C. § 794(a); see Taylor v. Rice, 451 F.3d 898, 905 (D.C. Cir.

2006) (Rehabilitation Act provides a private right of action against federal agencies for

employment discrimination claims on the basis of a disability). For a plaintiff’s Rehabilitation

Act claims to survive a motion for summary judgment, the plaintiff “must produce enough

evidence to allow a reasonable jury to conclude that he (1) has a disability; (2) was qualified to

perform the essential functions of employment with or without reasonable accommodation; and



                                                 13
(3) suffered an adverse employment decision due to his disability.” Desmond v. Mukasey, 530

F.3d 944, 952 (D.C. Cir. 2008) (citing Duncan v. WMATA, 240 F.3d 1110, 1114 (D.C. Cir.

2001)).

          The defendant argues that the record fails to establish that the plaintiff is a person with a

“disability.” See generally Def.’s Supp. Mot. at 2–7. The Rehabilitation Act provides that the

non-discrimination and non-retaliation provisions encoded in the Americans with Disabilities

Act of 1990 (the “ADA”) apply to claims brought by persons alleging discrimination on the basis

of a disability. See 29 U.S.C. § 791(f) (“The standards used to determine whether this section

has been violated in a complaint alleging nonaffirmative action employment discrimination

under this section shall be the standards applied under title I of the [ADA] (42 U.S.C. [§] 12111

et seq.) and the provisions of sections 501 through 504, and 510, of the [ADA] (42 U.S.C. [§§]

12201–12204 and 12210), as such sections relate to employment.”); see also Moghenhan v.

Napolitano, 613 F.3d 1162, 1165 (D.C. Cir. 2010) (recognizing the application of the ADA to

discrimination claims arising under the Rehabilitation Act); Breen v. Dep’t of Transp., 282 F.3d

839, 841 (D.C. Cir. 2002) (recognizing that employment discrimination standards are the same

under the Rehabilitation Act and the ADA) .

          The ADA bars employment discrimination against qualified individuals with a disability.

See 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on

the basis of disability in regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training, and other terms, conditions, and

privileges of employment.”). An individual is “disabled” under the ADA “if[] (1) he suffers

from an impairment; (2) the impairment limits an activity that constitutes a major life activity

under the Act; and (3) the limitation is substantial.” Haynes v. Williams, 392 F.3d 478, 482



                                                    14
(D.C. Cir. 2004); see 42 U.S.C. § 12102(1).6 The term “substantially limiting” requires a

showing that the impact of the impairment is “permanent or long term.” Toyota Motor Mfg, Ky.,

Inc. v. Williams, 534 U.S. 184, 198 (2001); see also Thompson v. Rice, 422 F. Supp. 2d 158,

170 (D.D.C. 2006) (“Merely submitting a medical diagnosis of an impairment is insufficient to

establish disability status. Instead, a plaintiff must ‘[offer] evidence that the extent of the

limitation [caused by the impairment] in terms of their own experience . . . is substantial.’

The impairment must ‘prevent or severely restrict” the individual in the major life activity at

issue and must have a permanent or long-term impact.”) (quoting Toyota Motor, 534 U.S. at

198) (first alteration in original)). The plaintiff bears the burden to establish that he is disabled.

See Haynes, 392 F.3d at 482.

        The plaintiff asserts (1) that he suffers the mental impairment of depression and anxiety,

(2) that his condition impairs his ability “to think, concentrate, and sleep,” and (3) that his

symptoms are long-term as shown by the medical documentation he provided between April

2003 and March 2007. Pl.’s Opp’n to Supp. Mot. at 2–3. The Court agrees for several reasons

with the defendant’s contention that the plaintiff has failed to meet the threshold requirement of

the ADA, i.e., establishing that he has a “disability” entitling him to the ADA’s

antidiscrimination protections. First, “if the impact of an impairment can be eliminated by

changing the address at which an individual works, that impairment is neither permanent nor

long term.” Haynes, 392 F.3d at 483. In Haynes, the plaintiff claimed that an allergic reaction to


6
  Significant changes to the Rehabilitation Act and ADA took effect on January 1, 2009. See ADA Amendments Act
of 2008, Pub. L. No. 110–325 (2008). However, the District of Columbia Circuit has held that “the [2009]
[a]mendments do not apply retroactively.” Lytes v. D.C. Water and Sewer Auth., 572 F.3d 936, 938–42 (D.C. Cir.
2009). Accord EEOC v. Agro Distribution, LLC, 555 F.3d 462, 470 n.8 (5th Cir. 2009); Fredricksen v. United
Parcel Serv., 581 F.3d 516, 521 n.1 (7th Cir. 2009); Moran v. Premier Educ. Grp., 599 F. Supp. 2d 263, 271–72 (D.
Conn. 2009)). Accordingly, where the alleged discriminatory conduct occurred before 2009, courts must apply the
law prior to enactment of the 2009 amendments to determine whether a person is an “individual with a
disability.” Lytes, 572 F.3d at 942.


                                                       15
environmental conditions at his workplace caused itching that impeded his ability to sleep,

leading to his inability to come to work during the designated work hours and his eventual

termination. Id. at 479–82. The Circuit upheld the district court’s decision to grant the

employer’s summary judgment motion, concluding that because the plaintiff’s impairment (his

alleged inability to sleep) could have been resolved by moving the plaintiff to a different work

location, he was not “substantially limited” by his impairment. Id. at 483.

       The Circuit’s reasoning in Haynes applies with equal force here, where the plaintiff has

put forward evidence showing that, in his medical providers’ opinions, moving the plaintiff away

from his work location or supervisor could have resolved his condition. See Pl.’s Opp’n, Ex. 18

(doctor’s letter recommending that the plaintiff be reassigned to a different location “away from

the medical center itself”); id., Ex. 20 (same); id., Ex. 21 (Deposition of Stephen A. Lund, Ph.D

(“Lund Dep.”)) at 79:1–24 (testimony by the plaintiff’s psychotherapist stating that the plaintiff

could have performed duties as an electrician if he was located away from the specific Veterans

Affairs medical center to which he was assigned); id., Ex. 22 (Video Deposition of Frank Joseph

Genova (“Genova Dep.”)) at 27:22–28:11 (testimony by the plaintiff’s psychiatrist that the

plaintiff “experienced a phobic-like response when attempting to enter the facilities where he

formerly worked . . . that would prevent him from essentially stepping onto the property”

(emphasis added)). The record therefore shows that the plaintiff’s depression and anxiety would

abate if he worked elsewhere, and as a result, the plaintiff has failed to establish a permanent or

long-term impairment that qualifies as a “disability” under the ADA.

       Second, to the extent the plaintiff’s anxiety and depression were based on or caused by

his allegedly strained relationship with his supervisor, see id., Ex. 20 (doctor’s letter stating that

the plaintiff’s “[s]ymptoms had arisen in [the] context of a work[] situation in which he felt



                                                  16
himself to have been subjected to unfair prejudicial treatment over an extended period of time by

his supervisor”), this is not a sufficient ground to establish a disability under the ADA, see

Adams v. Alderson, 723 F. Supp. 1531, 1531 (D.D.C. 1989) (district court found that the

medical evidence demonstrated that the plaintiff’s condition, a “‘maladaptive reaction to a

psychosocial stressor’ viz., the antagonizing supervisor, [] [was] [] a transitory phenomenon that

can be expected to disappear when the ‘psychological stressor’ is removed,” and thus the court

concluded that the alleged impairment was not substantial for purposes of the ADA); see also

Franklin v. Pepco Holdings, Inc., 875 F. Supp. 2d 66, 71 (D.D.C. 2012) (“[A]llegations of stress

caused by the conduct of others at an employee’s workplace will generally fail to state a claim

for disability under the ADA, because workplace-specific stress does not affect an employee’s

ability to perform ‘either a class of jobs or a broad range of jobs in various classes.’ (citing 29

C.F.R. § 1630.2(j)(3)(i) (EEOC regulation discussing “disability” under the ADA))); Coleman–

Adebayo v. Leavitt, 326 F. Supp. 2d 132, 141 n.6 (D.D.C. 2004) (“An impairment limited to and

arising from stress at work does not qualify as a disability.”) (citations and alterations omitted)).

       While the plaintiff attempts to rely on Miller v. Hersman, 759 F. Supp. 2d 1 (D.D.C.

2011), that case is distinguishable from both Haynes and this case. In Miller, the court denied

the defendant’s motion for summary judgment because there was conflicting evidence as to

whether or not the plaintiff’s impairment was tied to the particular workplace. 759 F. Supp. 2d at

13. Specifically, the court found that there was a genuine issue of material fact on this issue,

given that the plaintiff did not request a transfer as a reasonable accommodation and there was

conflicting medical evidence as to whether or not the plaintiff could have performed his duties in

a different environment. Id. Here, the testimony of the plaintiff’s medical provider

unequivocally states that the defendant’s “phobic reaction” is tied specifically to the medical



                                                  17
center where he was assigned. See Pl.’s Opp’n, Ex. 22 (Genova Dep.) at 27:22–28:11. In light

of this evidence, the plaintiff has failed to establish that he is “disabled” within the meaning of

the Rehabilitation Act, and summary judgment must be granted in favor of the defendant with

respect to Counts I and II of the Complaint.

       B.      The Plaintiff’s Retaliation Claim

       The plaintiff also claims that the defendant’s decision to terminate his employment was

made “in retaliation for requesting reasonable accommodations.” Compl. ¶ 41. The

Rehabilitation Act, through the ADA, bars employers from retaliating against employees who

lodge complaints of discrimination or engage in other statutorily-protected conduct. See Smith

v. District of Columbia, 430 F.3d 450, 454–55 (D.C. Cir. 2005) (citing 42 U.S.C. § 12203(a));

see 29 U.S.C. § 791(f) (making the ADA’s anti-retaliation provision (42 U.S.C. § 12203)

applicable to Rehabilitation Act claims). Retaliation claims under the Rehabilitation Act are

governed by the familiar burden-shifting framework adopted in McDonnell-Douglas, 411 U.S.

792, 802–06 (1973). See Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (citing Carter v.

George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)). “Under that framework, a

plaintiff must establish a prima facie case of retaliation by showing that (1) he engaged in a

statutorily protect activity; (2) that he suffered a materially adverse action by his employer; and

(3) that a causal link connects the two.” Id. (citing Wiley v. Glassman, 511 F.3d 151, 155 (D.C.

Cir. 2007) (emphasis added)). However, once an employer produces a legitimate,

nondiscriminatory reason for the adverse action, “the burden-shifting framework disappears, and

a court reviewing summary judgment looks to whether a reasonable jury could infer

intentional . . . retaliation from all the evidence.” Carter, 387 F.3d at 878.




                                                  18
       The defendant’s proffered reason for terminating the plaintiff’s employment was his

absence from work without leave for over 900 days, Def.’s Mem., Ex. 23 (October 6, 2011 letter

listing at Exhibit A the 919 days when the defendant was absent without leave between October

2005 and June 2009), which the Court finds is a legitimate, nondiscriminatory reason for the

plaintiff’s termination. In response, the plaintiff asserts that Veterans Affairs terminated his

employment in retaliation for his October 13, 2011 letter, which reiterated his prior requests for

an accommodation in the form of a reassignment and transfer. See Pl.’s Supp. Opp’n at 8. The

plaintiff also asserts that he was terminated in retaliation for his efforts to inform a congressman

and senator about the defendant’s alleged failure to provide a reasonable accommodation for his

alleged disability. See id. at 6–7. But none of this evidence—indeed, nothing in the record

currently before the Court—is sufficient to support the conclusion that a reasonable jury could

infer that the defendant’s decision to terminate the plaintiff constituted retaliation, rather than the

defendant’s determination that it was appropriate to terminate his employment for being absent

from work without leave for several years. See, e.g., Doak, 19 F. Supp. 3d at 280–81 (no

disputed question of material fact existed regarding the Coast Guard’s decision to remove

plaintiff where evidence showed that the plaintiff was absent for nearly 50% of work hours in a

year and the plaintiff merely argued that her absences were due to lack of accommodation for her

disability), aff’d, 798 F.3d 1096, 1107–08 (D.C. Cir. 2015). The Court will therefore grant

summary judgment in favor of the defendant with respect to Count III of the Complaint.

                                       IV.    CONCLUSION

       For the foregoing reasons, the Court will grant the defendant’s motion for summary

judgment and dismiss the Complaint in its entirety.




                                                  19
           SO ORDERED this 23rd day of March, 2017.7

                                                                              REGGIE B. WALTON
                                                                              United States District Judge




7
    The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

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