                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                             )
YEETTA L. WARD,                              )
                                             )
                                             )
              Plaintiff,                     )
                                             )
      v.                                     )       Civil Action No. 13-cv-1612 (TSC)
                                             )
DISTRICT OF COLUMBIA,                        )
                                             )
                                             )
              Defendant.                     )
                                             )

                                 MEMORANDUM OPINION

       Plaintiff Yeetta Ward brings this action against the District of Columbia pursuant to Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.; Title I of the

Americans with Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. § 12111, et seq.;

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the District of Columbia Human

Rights Act (“DCHRA”), D.C. Code § 2-1401.01, et seq.; and the Civil Rights Act of 1991, 42

U.S.C. § 1981a, for failure to provide reasonable accommodations, retaliation, and hostile work

environment. Following the close of discovery, Defendant moved for summary judgment. For

the reasons stated herein, Defendant’s Motion will be GRANTED in part and DENIED in part.

I.     BACKGROUND

       Plaintiff is a former employee1 of the District of Columbia’s Department of Youth

Rehabilitation Services (“DYRS”) who, during the period at issue, worked as a Youth

Correctional Officer, alternatively known as a Youth Development Representative. (Am.


1
 Plaintiff no longer works for DYRS, but the circumstances surrounding her departure are
unclear.

                                                 1
Compl. ¶¶ 12–13). In this position, she was responsible for supervising youth who were in the

care and custody of the Department of Youth and Rehabilitation Services. (Pls. Statement of

Material Facts (hereinafter Pls. SMF) ¶ 2). Plaintiff has been diagnosed with major depressive

disorder, post-traumatic stress, anxiety, and panic disorders, all of which are controlled with

medication and psychotherapy. (Pls. SMF ¶ 1; Am. Compl. ¶ 15).

       Plaintiff alleged that two DYRS co-workers—Jeffery McInnis and Sharon White-

Pulley—harassed her based on her gender in 2005 and 2006. Plaintiff filed a lawsuit against

DYRS in 2010, raising retaliation and hostile work environment claims, but the court rejected

her claims and granted summary judgment for DYRS. See Ward v. District of Columbia, 950 F.

Supp. 2d 9, 11–13, 23 (D.D.C. 2013).2

       From approximately 2011 through 2012, Plaintiff apparently did not encounter either of

the alleged harassers at work, but on or around April 30, 2012, Plaintiff suffered a “mental

breakdown” after she came in contact with McInnis at work. (Ward Dep. 49). Following the

mental breakdown, Plaintiff’s therapist informed DYRS that Plaintiff’s condition warranted her

taking leave, and Plaintiff notified DYRS that she would be using her earned sick leave. (Am.

Compl. ¶¶ 17–18).

       Contemplating her return to work, on August 3, 2012, Plaintiff requested workplace

accommodations from DYRS. Specifically, Plaintiff sought: (i) to avoid work that placed her in

contact with McInnis or White-Pulley; (ii) to take liberal leave for the purpose of attending



2
    In that lawsuit, Plaintiff alleged that McInnis triggered a metal detector at work and
commented to Plaintiff that it “must be the metal in my drawers.” Ward, 950 F. Supp. 2d at 11.
He later allegedly told Plaintiff: “I want you to use your hands and pat me down.” Id. Sometime
later, after Plaintiff complained to DYRS about McInnis’s comments, White–Pulley allegedly
insulted Ward on a regular basis by referring to her as “baldy,” “mini-me,” and “big mouth.” Id.
at 12.

                                                 2
medical appointments; (iii) exemption from working overtime in excess of her normal eight-hour

shift; and (iv) exemption from working weekends. (Defs. Ex. A). On August 30, 2012, Satina

Smith, a DYRS Management Liaison Specialist, sent a letter denying Plaintiff’s request for

exemption from overtime and weekend work, citing DYRS’s Overtime Draft Procedures. (Defs.

Ex. B). Instead, DYRS offered to transfer Plaintiff to an eight-hour midnight shift (10:45 p.m. –

6:45 a.m.) as a reasonable accommodation, reasoning that this would give Plaintiff the time and

flexibility to attend medical appointments, and allow her to avoid working with McInnis and

White-Pulley (who both worked daytime shifts). (Id.) Smith also advised Plaintiff that DYRS

would consider her absent without leave if she did not return to work on September 2, 2012.

(Id.) Smith concluded the letter by asking Plaintiff to make contact so that they could “discuss

further arrangements to return to work.” (Id.)

       Plaintiff informed DYRS that, pursuant to her doctor’s orders, she would not be able to

return to work on September 2 and therefore requested leave under the Family and Medical

Leave Act (“FMLA”) so that she would not be considered absent without leave. (Am. Compl.

¶ 27). Approximately one week later, on September 7, 2012, Plaintiff’s therapist sent a letter to

DYRS explaining that Plaintiff was “unable to work any [shifts of longer than eight hours] until

she [was] mentally and emotionally stronger.” (Pls. Ex. 13). The therapist also explained that

Plaintiff’s medical team was trying to stabilize her sleep patterns with medication, and such a

goal could not be achieved if she were to work on the night shift. (Id.) Finally, the therapist

recommended that DYRS allow Plaintiff to work from 6:30 a.m. to 3:00 p.m. on Sunday through

Thursday, which would allow her to keep her medical appointments and stabilize her sleep

patterns. (Id.)




                                                 3
       Plaintiff testified at her deposition that she was able to work the Sunday through

Thursday shift, but working on those days still exposed her to McInnis and White-Pulley. (Ward

Dep. 51–52). In both her Complaint and her brief, Plaintiff contends that the solution to this

problem would have been to transfer her to another position or location. (Am. Compl. ¶¶ 35–37;

Pls. Br. 25; see Ward Dep. 45, 100; Ohler Dep. 26–28).

       After receiving Plaintiff’s FMLA request, DYRS determined that she had sufficient

medical documentation to support her request and informed her that the leave would be applied

retroactively to April 30, 2012—the date of her emotional breakdown. (Pls. Ex. 26). However,

on September 16, 2012, Plaintiff reported for the midnight shift, under what she construed as a

“threat of disciplinary action.” (Pls. SMF ¶ 19). The shift supervisor told Plaintiff that DYRS

had no information regarding her changing to the midnight shift and sent Plaintiff home. (Pls.

Ex. 27; Ward Dep. 61). Subsequently, DYRS sent an email to Plaintiff explaining that since she

had not responded to Smith’s offer to move Plaintiff to the midnight shift, no scheduling changes

were ever made. (Pls. Ex. 27; see Defs. Response to Pls. SMF ¶ 19).

       What happened next is unclear, but Plaintiff alleges that at some point after the midnight

shift incident, DYRS placed her on what she describes as “administrative leave.” (Ward Dep.

66, 74). DYRS then required that Plaintiff undergo a “Fitness-for-Duty Examination” before she

could return to work. (See Pls. Ex. 20; Pls. SMF ¶¶ 15, 30). According to Plaintiff, DYRS did

not impose such a requirement on other employees. (Pls. SMF ¶¶ 15, 30).

       Plaintiff returned to work on October 18, 2012, after which DYRS required that she work

more than eight hours per day and denied her requests for leave to attend medical appointments.

(Am. Compl. ¶ 34; Ward Dep. 8–9, 72–73, 76). During this time, DYRS frequently transferred

her to various positions and, approximately one year later, reassigned her to the position of



                                                 4
Transportation Dispatcher. (Pls. Ex. 3, Interrog. 5; Am. Compl. ¶ 35). It is unclear from the

record whether this new assignment involved relocation to another facility, but the transfer

allowed Plaintiff to work eight-hour weekday shifts. (Am. Compl. ¶ 35). The parties do not

indicate whether this new assignment also allowed Plaintiff to avoid contact with McInnis and

White-Pulley. Plaintiff filed this action shortly after the final transfer, alleging that DYRS: (1)

discriminated against her by failing to provide reasonable accommodations; (2) retaliated against

her; and (3) created a hostile work environment.

II.    LEGAL STANDARD

       Summary judgment is appropriate where there is no disputed genuine issue of material

fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 330 (1986). In determining whether a genuine issue of material

fact exists, the court must view all facts in the light most favorable to the non-moving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party

bears the “initial responsibility of informing the district court of the basis for its motion, and

identifying those portions of the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits . . . which it believes demonstrate the absence of a

genuine issue of material fact.” Celotex Corp., 477 U.S. at 323 (internal quotation marks

omitted). The non-moving party, in response, must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate

specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks

omitted). “If the evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986)

(citations omitted). “[A]t the summary judgment stage the judge’s function is not himself to



                                                   5
weigh the evidence and determine the truth of the matter but to determine whether there is a

genuine issue for trial.” Id. at 249.

III.   ANALYSIS

       A. Disability Discrimination for Failure to Accommodate (Count I)

       Plaintiff first alleges that DYRS discriminated against her by failing to reasonably

accommodate her disability. An employer violates the ADA when it fails to make “reasonable

accommodations to the known physical or mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee, unless such covered entity can demonstrate

that the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). “The

term ‘qualified individual with a disability’ means ‘an individual with a disability who, with or

without reasonable accommodation, can perform the essential functions of the employment

position that such individual holds or desires.’” Woodruff v. Peters, 482 F.3d 521, 527 (D.C. Cir.

2007) (quoting 42 U.S.C. § 12111(8)). Therefore, to survive a motion for summary judgment,

Plaintiff must “come forward with sufficient evidence to allow a reasonable jury to conclude that

(i) she was disabled within the meaning of the [law]; (ii) her employer had notice of her

disability; (iii) she was able to perform the essential functions of her job with or without

reasonable accommodation; and (iv) her employer denied her request for a reasonable

accommodation of that disability.” Solomon v. Vilsack, 763 F.3d 1, 9 (D.C. Cir. 2014) (citations

omitted). DYRS asserts that Plaintiff could not perform the essential functions of her job and

that DYRS did provide her with a reasonable accommodation, which she declined.

       1. Essential Functions of Plaintiff’s Job

       DYRS argues that Plaintiff was unable to perform the essential functions of her job with

or without a reasonable accommodation because all YDR employees are required to work



                                                  6
overtime and weekends as a condition of employment. Plaintiff disputes that overtime and

weekend work are essential functions of her employment.

       “Employers enjoy ‘substantial deference’ in defining essential functions.” Floyd v. Lee,

85 F. Supp. 3d 482, 510 (D.D.C. 2015) (citation omitted). Under 29 C.F.R. § 1630.2(n)(3):

               [e]vidence of whether a particular function is essential includes, but is not
               limited to: (i) The employer’s judgment as to which functions are essential;
               (ii) Written job descriptions prepared before advertising or interviewing
               applicants for the job; (iii) The amount of time spent on the job performing
               the function; (iv) The consequences of not requiring the incumbent to
               perform the function; (v) The terms of a collective bargaining agreement;
               (vi) The work experience of past incumbents in the job; and/or (vii) The
               current work experience of incumbents in similar jobs.

               a. Overtime Work

       In support of its argument that overtime work (more than eight hours per day) is an

essential function of Plaintiff’s job, DYRS proffers a document entitled “Overtime Draft

Procedures.” (Defs. Mot. for Summ. J. 7; Defs. Ex. C, Section II). While the Procedures

provide that “all [staff] are required to work mandatory overtime as a condition of employment,”

(Defs. Ex. C, Section II), Human Resources representative Catherine Ohler testified that

exceptions to the overtime draft policy are made “on a case-by-case . . . basis.” (Ohler Dep. 32).

Additionally, DYRS documents in the record indicate that the agency exempted at least eight

employees from the overtime requirement. (Pls. Exs. 5–7). In light of this evidence, the court

finds that a genuine issue of material fact exists with respect to whether the overtime requirement

was an essential function of Plaintiff’s job.3




3
    The overtime work “requirement,” which prevented Plaintiff from attending medical
appointments, overlaps with Plaintiff’s request that DYRS allow her to take liberal leave in order
to attend these appointments. Thus, the court’s analysis on the overtime issue likewise applies to
Plaintiff’s request for accommodations to take liberal leave.

                                                 7
                  b. Weekend work

           Unlike the overtime issue, summary judgment is appropriate on the issue of Plaintiff’s

request to avoid weekend work because she ultimately withdrew that request. In response to

DYRS’s August 2012 letter offering an accommodation in the form of night-shift work,

Plaintiff’s therapist sent a letter to DYRS rescinding Plaintiff’s request to avoid weekend work.

In that letter, the therapist explained that Plaintiff’s treatment would be jeopardized by working

the night shift, working more than eight hours in a day, as well as exposure to McInnis and

White-Pulley. (Pls. Ex. 13). On the other hand, the therapist indicated that working on

weekends would not hamper Plaintiff’s treatment:

           I have spoken with Ms. Ward about her work schedule and she has advised that her
           previous work schedule was conducive and acceptable to the continue[d] treatment
           needed, which is 6:30 am to 3:00 pm Sunday [through] Thursday. I believe Ms.
           Ward is able to work this shift without any problems. This shift allows her to keep
           her medical appointments and stabilize her sleep patterns.

(Id.) (emphasis added). At her deposition, Plaintiff admitted that she agreed with the therapist’s

observation about working the Sunday through Thursday shift “without any problems,” except to

the extent it exposed her to McInnis. (Ward. Dep. 51–52). Given this evidence, the court finds

that Plaintiff does not have a viable failure to accommodate claim with regard to her request to

avoid working on the weekend, and the court will grant summary judgment to DYRS on this

issue. 4




4
    Had Plaintiff not withdrawn her accommodation request to avoid weekend work, the court
would have found that a genuine issue of material fact existed on this issue. DYRS’s policy
document indicates that the agency requires a “[r]otational tour of work normally requiring
rotation on each of three tours —AM, PM, Midnight—seven days per week, and holidays.”
(Defs. Ex. D). Weekend work that is “normally” required does not suggest that weekend work is
an essential function of the job, particularly in light of Ohler’s testimony that exemptions from
                                                   8
       2. DYRS’s Proposed Reasonable Accommodation/Undue Hardship

       DYRS’s argues that it provided Plaintiff with a reasonable accommodation—transferring

her to the midnight shift. Under the ADA, reasonable accommodations may include:

       job restructuring, part-time or modified work schedules, reassignment to a vacant
       position, acquisition or modification of equipment or devices, appropriate
       adjustment or modifications of examinations, training materials or policies, the
       provision of qualified readers or interpreters, and other similar accommodations for
       individuals with disabilities.

42 U.S.C. § 12111(9)(B).5 When determining how to address a reasonable accommodations

request, the employer and employee must engage in an interactive process. 29 C.F.R.

§ 1630.2(o)(3). The interactive “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., 417 F.3d 789, 805 (7th Cir. 2005)).

       If, after engaging in the interactive process, an employer refuses to provide the requested

accommodations, the employer must show that acquiescing would have caused an “undue

hardship.” Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999) (citing 42 U.S.C. §

12111(10)(B)). “In determining whether an accommodation would impose an undue hardship on

a covered entity, factors to be considered include”: (1) “the nature and cost of the

accommodation”; (2) “the effect on expenses and resources”; (3) “the overall size of the




weekend work are “done on a case-by-case basis and a person-by-person basis.” (Ohler Dep.
30).
5
     For disability discrimination claims, the Rehabilitation Act “as amended, directs courts to
employ the standards of the Americans with Disabilities Act of 1990.” Solomon, 763 F.3d at 5.
Similarly, “[w]hen evaluating claims brought under the DCHRA, ‘decisions construing the ADA
[are considered] persuasive.’” Giles v. Transit Emps. Fed. Credit Union, 794 F.3d 1, 5 (D.C. Cir.
2015) (quoting Grant v. May Dep’t. Stores Co., 786 A.2d 580, 583 (D.C. 2001)).

                                                 9
business . . . with respect to the number of its employees”; and (4) “the type of operation . . . ,

including the composition, structure, and functions of the workforce.” 42 U.S.C. §

12111(10)(B).

       DYRS argues that it was not required to provide the best accommodation available, only

an effective one, and that it provided Plaintiff with an accommodation that met the two

accommodation requests DYRS was capable of providing: avoiding work with McInnis and

White-Pulley, and having the flexibility to attend medical appointments.

       This argument fails for two reasons. First, DYRS had an obligation to engage in the

interactive process in order to determine whether providing the requested accommodation would

cause an “undue hardship.” 42 U.S.C. § 12112(b)(5)(A); see 29 C.F.R. § 1630.2(o)(3). DYRS

has not proffered evidence that allowing Plaintiff to work from 6:30 a.m. to 3:00 p.m. (i.e.,

exempting her from the overtime requirement and/or allowing liberal leave) in order to attend

afternoon counseling sessions would have caused such a hardship. Indeed, as discussed above,

there is evidence that DYRS exempted other employees from the overtime work “requirement.”

Therefore, there is a disputed issue of material fact as to whether providing Plaintiff with a

reasonable accommodation in the form of exemption from overtime work and/or use of liberal

leave would have caused DYRS undue hardship.

       3. Position/Location Transfer

       Even if DYRS had granted the eight-hour scheduling accommodation Plaintiff requested,

her request to avoid contact with McInnis and White-Pulley would have remained unresolved.

Plaintiff alleges that DYRS could have provided this accommodation by transferring her to a

position at one of two other DYRS locations. (Pls. Br. 25; Pls. SMF ¶ 16; Ward Dep. 45–47,

100–101; Ohler Dep. 26–28). Moreover, Ohler testified that DYRS could have transferred



                                                  10
Plaintiff “depending on the needs of the facility” or “if there were a vacancy.” (Ohler Dep. 26,

28, 30). Defendant responds that Plaintiff has failed to establish there was a position available.

       Employers are prohibited from discriminating on the basis of disability, and the ADA

defines disability discrimination to include

       not making reasonable accommodations to the known physical or mental
       limitations of an otherwise qualified individual with a disability who is an applicant
       or employee, unless such covered entity can demonstrate that the accommodation
       would impose an undue hardship on the operation of the business of such covered
       entity. 42 U.S.C. § 12112(b)(5)(A). Under the ADA’s scheme, then, it is
       discriminatory for a covered employer to decline to take reasonable steps to
       accommodate an employee’s disability, unless the steps in question “would impose
       an undue hardship on the operation of the business” of the employer.

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1300 (D.C. Cir. 1998).

       A “reasonable accommodation” “may include . . . job restructuring, part-time or

modified work schedules, [or] reassignment to a vacant position . . . .” 42 U.S.C. § 12111(9)

(emphasis added). Although not binding, EEOC regulations provide that “reassignment should

be considered only when accommodation within the individual’s current position would pose an

undue hardship.” 29 C.F.R. app. § 1630.2(o).

       Given the facts presented in this case, the court will deny summary judgment on the

position transfer accommodation request. While Plaintiffs must act proactively when requesting

accommodations, so must the employer. Indeed, the EEOC takes the following position with

respect to the question of whether the employer has a duty to identify vacant positions or whether

the employee has a duty to learn of vacant positons:

       Does an employer have to notify an employee with a disability about vacant
       positions, or is it the employee’s responsibility to learn what jobs are vacant?

       The employer is in the best position to know which jobs are vacant or will become
       vacant within a reasonable period of time. In order to narrow the search for
       potential vacancies, the employer, as part of the interactive process, should ask the
       employee about his/her qualifications and interests. Based on this information, the

                                                11
       employer is obligated to inform an employee about vacant positions for which s/he
       may be eligible as a reassignment. However, an employee should assist the
       employer in identifying appropriate vacancies to the extent that the employee has
       access to information about them. If the employer does not know whether the
       employee is qualified for a specific position, the employer can discuss with the
       employee his/her qualifications.

U.S. Equal Emp’t Opportunity Comm’n, No. 915.002, Enforcement Guidance: Reasonable

Accommodation and Undue Hardship Under the American with Disabilities Act, Reassignment

Question 28 (Oct. 17, 2002), 2002 WL 31994335, at *23 (footnote omitted).

       Similarly, as the Court noted in Aka v. Washington Hospital. Center, 156 F.3d 1284,

1304 n.27 (D.C. Cir. 1998):

       Under the applicable caselaw, it is true that Aka had an obligation to demonstrate
       that there existed some vacant position to which he could have been reassigned.
       See, e.g., McCreary v. Libbey–Owens–Ford Co., 132 F.3d 1159, 1165 (7th Cir.
       1997). On the other hand, WHC had a corresponding obligation to help him identify
       appropriate job vacancies (since plaintiffs can hardly be expected to hire detectives
       to look for vacancies). See, e.g., Dalton v. Subaru–Isuzu Automotive, Inc., 141
       F.3d 667, 677 (7th Cir.1998) (“[T]he ADA places a duty on the employer to
       ‘ascertain whether he has some job that the employee might be able to fill.’ ”)
       (quoting Miller v. Illinois Dep’t. of Corrections, 107 F.3d 483, 487 (7th Cir.1997));
       Mengine v. Runyon, 114 F.3d 415, 419–20 (3d Cir. 1997).

Although the facts in Aka are distinguishable,6 this language and the EEOC guidelines suggest

that an employee’s obligation to seek reassignment and the employer’s obligation to assist or

consider reassignment must be weighed against each other based on the circumstances of each

case. In the present case, it is unclear the extent to which there were vacant positions for which

Plaintiff was qualified and, if such positions existed, the extent to which to DYRS could have



6
   In Aka, the plaintiff requested a transfer as an accommodation, but the employer declined and
informed plaintiff he was responsible for reviewing the vacant job listings and applying for jobs
that could accommodate his disability. Aka, 156 F.3d at 1286. When plaintiff applied for jobs
that he was qualified to perform, the hospital hired less senior applicants, even though the
plaintiff had “excellent” evaluations and had been described as “highly intelligent and
motivated.” Id. at 1287.

                                                12
transferred Plaintiff without undue hardship. Accordingly, DYRS is not entitled to summary

judgment on the transfer issue.

       Based on the foregoing, as regards Plaintiff’s requests for accommodations, the court will

grant summary judgement solely on Plaintiff’s attempt to avoid weekend work. In all other

respects, the court will deny Defendant’s motion for summary judgment on the reasonable

accommodations claim.

       B. Retaliation (Count II)

       To establish a prima facie case of retaliation, a plaintiff must show “first, that she

engaged in protected activity; second, that she was subjected to adverse action by the employer;

and third, that there existed a causal link between the adverse action and the protected activity.”

Broderick v. Donaldson, 437 F.3d 1226, 1231–32 (D.C. Cir. 2006) (quoting Smith v. District of

Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005)). It is undisputed that Plaintiff engaged in

protected activity on at least two occasions. First, she filed a lawsuit against DYRS in 2010

asserting gender based harassment and retaliation associated with her complaints to management

about McInnis and White-Pulley. See Ward, 950 F. Supp. 2d at 11–13. That lawsuit was

ongoing when she sought the accommodations at issue here, and her request for accommodation

was itself protected activity. See Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 77

(D.D.C. 2009) (“Requests for accommodation are ‘protected activities’ within the meaning of

the ADA.”) (citation omitted).

       Plaintiff alleges that, as a result of her protected activity, DYRS retaliated against her by:

              Denying her accommodation requests;

              Making it difficult for her to attend medical appointments by requiring that she
               work shifts in excess of eight hours and denying her requests for leave;




                                                 13
               Threatening her with discipline if she did not report for the midnight shift and
                then sending her home after she did report;

               Placing her in “regular” contact with McInnis;

               Continually reassigning her to different parts of the Agency;

               Failing to pay her for administrative leave by retroactively designating approved
                paid leave as unpaid FMLA leave; and

               Requiring her to submit additional medical information and a Fitness-for-Duty
                Examination.

(Pls. Br. 7, 14-15; Pls. SMF ¶¶ 32, 36).

       1.       Plaintiff’s Requests for Reasonable Accommodations

       The court finds no support for Plaintiff’s allegation that weekend work constituted

retaliation. Plaintiff’s admitted ability to work weekends, which was approved by her therapist,

belies any suggestion that she suffered an adverse employment action when DYRS denied her

request to avoid weekend work.

       In contrast, the court finds sufficient evidence to support Plaintiff’s claim that DYRS

retaliated against her by requiring her to be available to work more than eight hours daily and

refusing to grant her leave to attend medical appointments. As discussed above, DYRS exempts

employees from the overtime requirement on a case-by-case basis. (Ohler Dep. 32). Therefore,

requiring Plaintiff to work overtime when others were given exemptions is sufficient to raise an

inference of retaliation. Moreover, the agency has not come forward with any justification for

flatly denying Plaintiff’s repeated requests for leave to attend medical appointments. (See Ward

Dep. 8–9, 72–73, 76).

       Likewise, as discussed above, there is insufficient evidence to grant summary judgment

on whether transferring Plaintiff so as to avoid contact with McInnis and White-Pulley would

have been viable. Inasmuch as Plaintiff’s lawsuit against DYRS was ongoing at the time of the

                                                 14
challenged conduct and because that lawsuit directly related to Plaintiffs’ allegations involving

alleged harassment by those two co-workers, a reasonable fact-finder might determine that

failing to transfer Plaintiff was retaliatory. Accordingly, the court will grant summary judgment

on the reasonable accommodations retaliation claim solely as it relates to Plaintiff’s request for

exemption from weekend work.

       2.      Failing to Pay Plaintiff for Administrative Leave

       Plaintiff next alleges that DYRS retaliated against her by “retroactively applying FMLA

leave to approved sick leave used several months prior.” (Pls. SMF ¶ 32). The precise nature of

this claim is unclear. It appears that DYRS initially approved Plaintiff’s request for leave with

pay but, after she requested reasonable accommodations, the agency later reclassified a portion

of her leave as unpaid FMLA. (See Pls. Ex. 31; Ward Dep. 90). It appears from the record,

however, that Plaintiff was on paid leave when she requested FMLA leave and, consequently,

her conversion to FMLA leave could not have been retaliatory. (See Pls. Ex. 26; see Am.

Compl. ¶¶ 17–18). What is unclear is whether the purported retroactive application of the

FMLA leave occurred according to DYRS policy, the extent to which any such policies were

applied in a retaliatory manner, or the extent to which the entire incident resulted from Plaintiff’s

misunderstanding about the implications of requesting FMLA leave.

       In any event, viewing the facts in the light most favorable to Plaintiff, it appears that there

is a disputed issue of fact as to whether she was unfairly denied compensation for paid leave that

DYRS had previously approved, and DYRS does not sufficiently address this issue in its reply

brief or in its response to Plaintiff’s Statement of Material Facts. (See Pls. Ex. 31; Ward Dep.

90). Instead, DYRS simply asserts that Plaintiff’s uncorroborated self-serving testimony does

not create a genuine issue of material fact, and cites to the opinion in Ward’s earlier lawsuit in



                                                 15
support of this position. (Defs. Response to Pls. SMF ¶ 37) (citing Ward, 950 F. Supp. 2d at 17).

But in Ward’s prior lawsuit, the court noted that Plaintiff’s testimony that DYRS retaliated

against her (by forcing her to work up to sixteen hours a day) was insufficient to establish

discrimination in light of documented evidence from DYRS to the contrary. Ward, 950 F. Supp.

2d at 16–17. DYRS has not cited to any such documented evidence in the present case, and

therefore cannot rely on Ward.

          While DYRS may have had a legitimate reason for its actions, without any evidence in

the record explaining why DYRS failed to pay Plaintiff for what she asserts was pre-approved

paid administrative leave, a reasonable fact-finder could determine that DYRS acted with

retaliatory motive. Therefore, DYRS’ motion for summary judgment as to that claim will be

denied.

          3.     Reassignments

          Plaintiff alleges that DYRS retaliated against her by continually reassigning her to

different positions within the agency upon her return from leave. (Pls. SMF ¶ 32). Plaintiff does

not support her allegation with evidence of retaliatory motive, however. She does not provide

any comparator evidence, nor does she point to any policy that might indicate such

reassignments were unusual. Therefore, she has not presented any evidence from which a

reasonable fact-finder could determine that the reassignments were retaliatory. Therefore, the

court will grant summary judgment on this claim.

          4.     Midnight Shift Incident

          Plaintiff alleges that DYRS retaliated against her when, under “threat of disciplinary

action,” she returned from leave in order to work the midnight shift, and was then sent home.

(Pls. SMF ¶ 19). Plaintiff has not pointed to any evidence, however, that might indicate the



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incident was retaliatory. As discussed above, the agency’s correspondence with Plaintiff

indicated she should contact the agency to make arrangements to return to work on September 2.

(Pls. Exs. 25, 27). She responded by informing DYRS that she would not be able to return to

work on September 2 and requested FMLA leave. (Am. Compl. ¶ 27). Her therapist

subsequently sent a letter to DYRS explaining that Plaintiff was unable to work the midnight

shift. (Pls. Ex. 13). Although it is unclear what transpired between the date of that letter and the

day Plaintiff showed up to work the midnight shift, there is no indication that Plaintiff ever

confirmed she planned to accept the midnight shift offer. When asked during her deposition

whether she ever contacted the manager who sent the letter, Plaintiff testified that she did speak

with the manger. (Ward Dep. 60). But, when asked if she accepted the offer of the midnight

shift accommodation, Plaintiff responded: “I didn’t – I did – I can’t recall exactly what occurred

after [the letter]. What I do know is that I did report to work on the midnight shift and was sent

home.” (Id.) Without evidence that DYRS was aware Plaintiff intended to accept its offer and

show up for the midnight shift, or evidence that DYRS treated other employees more favorably

under similar circumstances, there is nothing untoward or retaliatory about the agency’s response

to Plaintiff’s unexpected arrival at work. Accordingly, Plaintiff’s retaliation claim fails on the

midnight shift issue.

       5.      Fitness for Duty Examination

       Plaintiff alleges that, after the midnight shift incident, DYRS retaliated against her by

requiring that she submit to what she calls a Fitness-for-Duty “examination.” (Pls. Br. 8). She

contends this requirement was retaliatory for two reasons. First, an agency official admitted that

the Fitness-for-Duty requirement was not mandatory, but was imposed on a “case-by-case” basis.




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(Ohler Dep. 44). Second, Plaintiff contends the requirement was retaliatory because the agency

“had never required one before from anyone.” (Ward Dep. 69; see Pls. SMF ¶ 30).

       As an initial matter, the court notes that, according to the evidence presented, the agency

did not in fact require that the Plaintiff undergo an “examination.” (See Ward Dep. 69). Ward

testified that the agency gave her documents that she gave to her physician for the purpose of

certifying that she was capable of preforming her duties. (Id.) Additionally, despite Plaintiff’s

contention to the contrary, there is evidence that the agency had previously required that at least

one other person undergo the examination. (See Ohler Dep. 43–44).

       Despite these clarifications, the court finds that the Plaintiff has presented just enough

evidence to support her retaliation claim as it relates to the examination. While DYRS correctly

argues that it may legally request additional information from employees who request

accommodations, this argument ignores the fact that the agency had already received information

from Plaintiff’s medical providers: On July 24, 2012 one of her medical providers sent a letter to

DYRS explaining that Plaintiff was “doing very well” and would be released to return to work

on Monday August 6, 2012, with accommodations. (Pls. Ex. 10). Another letter followed on

July 27, explaining that Plaintiff was “compliant with her treatment plan,” and was able to

“return to work” with accommodations. (Pls. Ex. 11). DYRS has not explained why these two

letters were insufficient; while the agency may have had legitimate reasons for requesting

additional information, the agency has not presented any evidence in support of its request.

Moreover, a DYRS representative testified that the agency requires the examination on a “case-

by-case” basis, but she could only remember one person, besides Plaintiff, whom the agency had

required to submit to the examination. (Ohler Dep. 43–44). Given Plaintiff’s prior protected




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activity, a reasonable fact-finder might determine that in this instance the examination

requirement was retaliatory.

       In light of these findings, the court will grant summary judgment on the retaliation claim

as it relates to: (1) the request to avoid weekend work; (2) Plaintiff’s repeated reassignments; and

(3) the midnight shift incident.

       C. Hostile Work Environment (Count III)

       Finally, Plaintiff claims she was subjected to a hostile work environment. A plaintiff

may prevail on a hostile work environment claim if she shows “that [her] employer subjected

[her] to discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of [her] employment and create an abusive working environment.” Baloch v.

Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (internal quotation marks omitted). In

considering a claim of hostile work environment, the court must consider “the totality of the

circumstances, including the frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work performance.” Id. (citing

Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)). “The constituent acts must be

‘adequately linked’ such that they form ‘a coherent hostile environment claim.’” Baird v.

Gotbaum, 792 F.3d 166, 168–69 (D.C. Cir. 2015) (quoting Baird v. Gotbaum, 662 F.3d 1246,

1251 (D.C. Cir. 2011)). The standard is an objective one, Baird, 792 F.3d at 172 (citing Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)), and it is viable only if the conduct complained of is

so “extreme to amount to a change in the terms and conditions of employment.” George v.

Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (quoting Faragher, 524 U.S. at 788).

       Plaintiff’s hostile work environment claim involves largely the same allegations she

relies upon to support her retaliation claim: denial of her request to avoid contact with McInnis

and White-Pulley, denial of her requests for leave to attend medical appointments, requiring that
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she submit the fitness-for-duty paperwork, multiple reassignments, and previously approved paid

leave that was suddenly converted to unpaid leave. Additionally, Plaintiff supports her hostile

work environment claim by pointing to a derogatory comment made by a co-worker, who said

“no one is going to listen to you because you are crazy.” (Pls. Ex. 31). Finally, Plaintiff argues

that the unreasonably long delay in providing a reasonable accommodation constituted a hostile

work environment.

       Given the evidence presently before the court, summary judgment is not appropriate on

Plaintiff’s hostile work environment claim. Plaintiff alleges that DYRS repeatedly forced her to

work overtime and denied her leave requests, thereby making it difficult or impossible to make

her therapy appointments. Additionally, Plaintiff’s health care providers indicated that

regulating her sleep was essential to improving her cognitive condition, but Plaintiff alleges that

the forced overtime exacerbated her sleep problems. Plaintiff also alleges that DYRS kept her in

a position where she might encounter McInnis and White-Pulley at any time. While she only

remembered encountering at least one of those co-workers on three occasions between October

2012 and August 2014, she contends that she suffered a “mental breakdown” each time she saw

one of them. Finally, Plaintiff asserts that DYRS demanded that she submit more medical

documentation than other employees requesting accommodations, failed to pay her for leave that

had apparently been approved as paid leave, and took an unreasonably long time to reach a

decision about her requests for accommodations. Viewing the evidence in the light most

favorable to Plaintiff, and given her documented mental health issues, such conduct certainly

could have “alter[ed] the conditions of [her] employment and create[d] an abusive working




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environment.” See Baloch, 550 F.3d at 1201 (quoting Harris, 510 U.S. at 21). Accordingly, the

court will deny summary judgment to DYRS on Plaintiff’s hostile work environment claim.7

IV.    CONCLUSION

       For the foregoing reasons, the court will grant summary judgment on Plaintiff’s

reasonable accommodations claim (Count I) as it relates to her request for exemption from

weekend work. The Court will also grant summary judgment on her retaliation claim (Count II)

as it relates to her request for exemption from weekend work, her allegations about repeated

work reassignments and the midnight shift incident. In all other respects, the court will deny

DYRS’s motion.



Date: September 30, 2016


                                              Tanya S. Chutkan
                                              TANYA S. CHUTKAN
                                              United States District Judge




7
   The court notes that Plaintiff’s Statement of Facts includes multiple instances where the
paragraph simply states a legal proposition and then cites to numerous places in the record to
support that proposition, but the paragraph does not set forth the specific facts supporting the
proposition. (See, e.g., Pls. SMF ¶¶ 18, 31.) Going forward, counsel are reminded that the
Statement of Facts shall contain specific factual allegations. Moreover, in paragraphs where
multiple factual allegations are included (see, e.g., Pl. SMF ¶ 32), citations to the record shall
follow each factual allegation, rather than at the end of the textual sentence. Failure to comply
with these guidelines, the Local Rules of this court, the Federal Rules of Civil Procedure or any
court orders may result in the court striking the non-complaint pleading.

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