                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
CASSANDRA M. MENOKEN,              )
                                   )
            Plaintiff,             )
                                   )
      v.                           )
                                   )    Civil Action No. 16-2480 (RMC)
VICTORIA A. LIPNIC, Acting Chair,  )
Equal Employment Opportunity       )
Commission,                        )
                                   )
            Defendant.             )
_________________________________  )

                                 MEMORANDUM OPINION

               Before the Court is Plaintiff’s Rule 54(b) Motion for Reconsideration of the

Court’s March 6, 2018 Memorandum Opinion and Order dismissing, with prejudice, Plaintiff’s

claims under the Rehabilitation Act pursuant to Defendant’s Motion to Dismiss or, in the

Alternative, for Summary Judgment. The Plaintiff, Cassandra M. Menoken, requests

reinstatement of her Rehabilitation Act claims against her employer, the Equal Employment

Opportunity Commission (EEOC).

               After careful review, the Court finds that Plaintiff has failed to provide

justification to revisit her claims under the Rehabilitation Act and will deny the Motion for

Reconsideration.

                                    I.      BACKGROUND

               The facts were discussed in detail in the Court’s March 6, 2018 Memorandum

Opinion in this case and will only be repeated to the extent that they are relevant to the pending

motion. See Menoken v. Lipnic, 300 F. Supp. 3d 175 (D.D.C. 2018). Ms. Menoken is an

African-American woman who has been employed as an attorney with the EEOC for the past



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thirty-five years. Id. at 179. On September 11, 2012, Ms. Menoken requested a meeting with

EEOC’s Disability Program Manager to discuss her need for a reasonable accommodation on the

grounds that she was not “currently able to meet the demands of [her] job” because the

uncertainty and delay surrounding her pending equal employment opportunity (EEO) appeals

from previous complaints against the Office of Personnel Management was affecting her health.

Ex. 1, Def.’s Mot. to Dismiss Pl.’s Am. Compl. or, in the Alt., for Summ. J. (Mot. to Dismiss),

Confirmation of Request for Reasonable Accommodation (Request for Accommodation) [Dkt.

8-3] at 000400; see also Am. Compl. [Dkt. 7] ¶ 92. Ms. Menoken requested “[p]aid leave for 6

months or until such time as [her] discrimination complaints are adjudicated (whichever is

longer).” Request for Accommodation at 000400. Chief Operating Officer Withers (COO

Withers) allegedly arranged for processing of Ms. Menoken’s accommodation request to be

delayed and offered to settle it by approving Ms. Menoken’s reasonable accommodation request

if she absolved EEOC of liability with respect to any claims arising from her employment. Am.

Compl. ¶¶ 94, 96. Ms. Menoken rejected the settlement offer. Id. ¶ 97.

               On February 6, 2013, Ms. Menoken filed a formal EEO complaint alleging a

hostile and adverse work environment. See id. ¶ 27. She filed another EEO complaint on

September 26, 2014, “asserting violations of the Rehabilitation Act after learning that EEOC had

disregarded her right to medical privacy as well as her right not to be subjected to unwarranted

medical inquiries.” Id. ¶ 42. This second complaint alleged that “EEOC arranged for a stranger,

not employed by the government, to repeatedly access and review medical information in

Plaintiff’s [Office of Workers’ Compensation] file.” Id. ¶ 43. An Administrative Judge

dismissed both complaints. Id. ¶ 49.




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               On December 20, 2016, Ms. Menoken filed this action, which was later amended,

alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and

the Rehabilitation Act (Rehab Act), 29 U.S.C. § 701, et seq. Menoken, 300 F. Supp. 3d at 182.

The Court dismissed Ms. Menoken’s Amended Complaint in its entirety for failure to state a

claim on which relief could be granted. See id at 190. As to Ms. Menoken’s reasonable

accommodation claim, the Court concluded that she was not a “qualified individual” and that the

accommodation requested was not reasonable. Id. at 185-87. Further, the Court concluded that

Ms. Menoken’s complaint failed to state a claim for breach of confidentiality, that a claim of

“interference” is not cognizable as a separate claim under the Rehab Act, and that Ms. Menoken

failed to allege a claim for unlawful access of her medical records. Id. at 187-88. As to Ms.

Menoken’s Title VII claim of a retaliatory hostile work environment, the Court concluded that

her complaint failed to allege sufficiently severe or pervasive hostile acts that could have

interfered with her work. Id. at 190.

               Ms. Menoken now moves under Rule 54(b) for the Court to reconsider its

dismissal of her claims under the Rehab Act. Pl.’s Mot. for Recons. [Dkt. 17]. As grounds for

her motion, Ms. Menoken states the following:

               1.     The Memorandum Opinion evinces a fundamental
               misapprehension of the operative facts and governing law
               supporting the legal sufficiency of Plaintiff’s claims that Defendant
               unlawfully interfered with her efforts to exercise rights under the
               Rehabilitation Act and unlawfully failed to provide her a reasonable
               accommodation.

               2.      The Memorandum Opinion evinces a fundamental
               misapprehension of the operative facts and governing law
               supporting the legal sufficiency of Plaintiff’s claims that Defendant
               violated the Rehabilitation Act when it allowed an unauthorized
               individual to access Plaintiff’s Workers Compensation file to
               monitor medical information in that file.




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                3.     Reinstatement of Plaintiff’s Rehabilitation Act claims is
                appropriate and necessary to avoid a manifest injustice.

Id. at 1. Additionally, Ms. Menoken filed a memorandum in support of her motion. Mem. of P.

& A. Supporting Pl.’s Mot. for Recons. (Mem.) [Dkt. 17-1]. EEOC opposed. Def.’s Opp’n to

Pl.’s Mot. for Recons. (Opp’n) [Dkt. 21]. Ms. Menoken replied. Reply to Def.’s Opp’n to Pl.’s

Mot. for Recons. (Reply) [Dkt. 22]. The motion is ripe for review.

                                    II.     LEGAL STANDARD

                Federal Rule of Civil Procedure 54(b) provides that “any order . . . that

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . .

may be revised at any time before the entry of a judgment adjudicating all the claims and all the

parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). “The Court has broad discretion to hear a

motion for reconsideration brought under Rule 54(b).” Isse v. American Univ., 544 F. Supp. 2d

25, 29 (D.D.C. 2008). Courts in this jurisdiction have established that reconsideration is

appropriate “as justice requires.” Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005). A

court may consider “whether the court ‘patently’ misunderstood a party, made a decision beyond

the adversarial issues presented to the court, made an error in failing to consider controlling

decisions or data, or whether a controlling or significant change in the law or facts has occurred

since the submission of the issue to the Court.” United States v. Dynamic Visions, Inc., 321

F.R.D. 14, 17 (D.D.C. 2017).

                                          III.    ANALYSIS

        A. Medical Inquiries & Confidentiality Claims

                Ms. Menoken argues that the Court mistakenly concluded that her medical

inquiries and confidentiality claims are not actionable. See Mem. at 5-6. The Court found a

problem of timing with Plaintiff’s alleged confidentiality claims. See Menoken, 300 F. Supp. 3d



                                                    4
at 187. Ms. Menoken alleges that the documents were considered and accessed without

authorization as part of a Workers’ Compensation claim in 2014, but EEOC’s investigation and

consideration of Ms. Menoken’s Rehab Act reasonable accommodation request concluded in

April 2013. See Am. Compl. ¶¶ 42-43; see also Ex. 3, Mot. to Dismiss, Letter from Donna

Walton [Dkt. 8-5]. Additionally, the Court found a lack of alleged harm from unauthorized

access to Ms. Menoken’s Workers’ Compensation records. See Menoken, 300 F. Supp. 3d at 188

n.2. The Court dismissed Ms. Menoken’s “medical inquiries” claim because it found that her

complaint included no allegation that the EEOC made unlawful inquiries into her medical history

and did not identify any provision of the Rehab Act authorizing suit for lawful inquiries. Id. at

188.

               In the current motion, Ms. Menoken now states that her Amended Complaint was

not clear and that she intended the medical inquires and confidentiality claims to be separate

from her reasonable accommodation Rehab Act claim. That was not her position in briefing the

motion to dismiss. Instead, Ms. Menoken specified the five claims raised in her Amended

Complaint and included the medical inquires and confidentiality claims as part of her Rehab Act

claims. See Menoken, 300 F. Supp. 3d at 185. As did Plaintiff in explaining her opposition to

the motion to dismiss, the Court analyzed her “confidentiality” and “interference and unlawful

access” claims separate and apart from her “reasonable accommodation” claim. See id. at 184-

89. Ms. Menoken offers nothing to warrant reconsideration.

       B. Failure to Provide a Reasonable Accommodation Claim

               Ms. Menoken argues that the Court mistakenly overlooked or misapprehended

facts showing she was “qualified” under the Rehab Act and unlawfully denied a reasonable

accommodation. See Mem. at 6-7. To advance a claim for a violation of the Rehab Act, a




                                                 5
plaintiff must allege that: (1) she had a disability within the meaning of the statute; (2) the

employer had notice of the disability; (3) “with [or without] reasonable accommodation [the

employee] could perform the essential functions of [the] job”; and (4) “the employer refused to

make such accommodations.” Floyd v. Lee, 968 F. Supp. 2d 308, 316 (D.D.C. 2013). The Court

held that Ms. Menoken did not respond to the argument that she was not a “qualified individual”

and so waived her chance to do so. Menoken, 300 F. Supp. 3d at 185. Additionally, the Court

found that “the very accommodation requested was to not perform the necessary functions of her

position for so long as her EEO charges were pending, which is the exact opposite of showing

that she was qualified to perform her job with an accommodation.” Id. at 186. The Court

concluded that Ms. Menoken’s reasonable accommodation claim failed as a matter of law

because her requested accommodation of paid leave for an extended period of unknown duration

was not reasonable. Id. at 187.

               Ms. Menoken claims that she did not demand to be accommodated by a grant of

unlimited paid leave. See Mem. at 6. She points to her declaration where she alleges that her

requests were denied for EEOC to arrange alternative processing for her OPM appeals or for

reassignment to another position in EEOC. See id. at 6-7; see also Decl. of Cassandra M.

Menoken in Supp. of Am. Compl. [Dkt. 10-1] ¶ 3. However, the Amended Complaint

specifically mentions Ms. Menoken’s September 11, 2012 request to EEOC to discuss her need

for a reasonable accommodation. See Am. Compl. ¶ 92. The Court has before it Ms. Menoken’s

written request of the same date seeking “[p]aid leave for 6 months or until such time as my

discrimination complaints are adjudicated (whichever is longer).” Request for Accommodation

at 000400.




                                                  6
               Ms. Menoken does not dispute that indefinite leave is not a reasonable

accommodation as a matter of law, nor does she address the Court’s conclusion that she waived

her chance to respond to the argument that she was not a “qualified individual.” Because Ms.

Menoken is not a “qualified individual” and her requested accommodation of paid leave for an

extended period of unknown duration was not reasonable, her reasonable accommodation claim

fails as a matter of law. Ms. Menoken’s motion for reconsideration, therefore, offers no

compelling justification to revisit her reasonable accommodation claim.

       C. Interference Claim

               Ms. Menoken argues that the Court mistakenly held that a claim of interference is

not actionable. See Mem. at 3-5. The Court found that an employee may challenge the result of

the process identifying and providing or not providing an accommodation but that the law does

not recognize a claim concerning the sufficiency of the process itself. See Menoken, 300 F.

Supp. 3d at 188; see also Pantazes v. Jackson, 366 F. Supp. 2d 57, 70 (D.D.C. 2005) (finding

that because the process of identifying a reasonable accommodation is not an end in itself, to

raise a claim the employee must show that as a result of the process the employer failed to fulfill

the requirements of the Act). Ms. Menoken alleged that the settlement offered by COO Withers

constituted “interference,” but the Court held that this is not cognizable as a separate claim from

her reasonable accommodation claim under the Rehab Act. See Menoken, 300 F. Supp. 3d at

188.

               Ms. Menoken points to subsection (b) of the Rehab Act’s prohibition against

retaliation and coercion. See Mem. at 3. It provides the following:

               It shall be unlawful to coerce, intimidate, threaten, or interfere with
               any individual in the exercise or enjoyment of, or on account of his
               or her having exercised or enjoyed, or on account of his or her




                                                 7
               having aided or encouraged any other individual in the exercise or
               enjoyment of, any right granted or protected by this chapter.

42 U.S.C. § 12203(b). Subsection (b) is treated as a retaliation provision in this jurisdiction. See

Doak v. Johnson, 798 F.3d 1096, 1099 (D.C. Cir. 2015). To establish a prima facie case of

retaliation, a plaintiff must show that: “(i) she engaged in statutorily protected activity; (ii) she

suffered a materially adverse action by her employer; and (iii) a causal link connects the two.”

Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014) (quoting Jones v. Bernanke, 557 F.3d 670,

677 (D.C. Cir. 2009)) (internal quotation marks omitted). Ms. Menoken was engaged in a

statutorily protected activity by requesting a reasonable accommodation. See Smith v. District of

Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005) (finding that the plaintiff engaged in a statutorily-

protected activity when she filed her first EEOC complaint).

               Ms. Menoken fails to show that she suffered a materially adverse action by her

employer. “While actionable ‘adverse actions in the retaliation context encompass a broader

sweep of actions than those in a pure discrimination claim’ and need not necessarily ‘affect the

terms and conditions of a claimant’s employment,’ an employee bringing a claim of retaliation

under the [Americans with Disabilities Act] must nevertheless establish that a reasonable

employee would have found the action materially adverse.” Mack v. Georgetown Univ., No. 15-

793, 2017 WL 4325596, at *18 (D.D.C. Aug. 4, 2017) (quoting Paschal v. District of Columbia,

65 F. Supp. 3d 172, 177 (D.D.C. 2014)). Ms. Menoken alleges that COO Withers unlawfully

arranged for processing of her accommodation request to be delayed and offered to settle by

approving Ms. Menoken’s reasonable accommodation request if she absolved EEOC of liability

with respect to any claims arising from her employment. Am. Compl. ¶¶ 94, 96; see also Mem.

at 4. However, this Court has determined that Ms. Menoken’s requested accommodation was

not reasonable. An employer and employee determine a reasonable accommodation best



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“through a flexible, interactive process.” Pantazes, 366 F. Supp. 2d at 70 (citing 29 C.F.R.

§ 1630.2(o)(3)). The “interference” Ms. Menoken alleges is simply part of this interactive

process after requesting an accommodation that was not reasonable; it is not an adverse action.

                Not only is the sufficiency of the process of determining a reasonable

accommodation not challengeable under the Rehab Act, but even if Ms. Menoken’s claim were

construed under 42 U.S.C. § 12203(b), a prima facie case could not be established because she

cannot show a materially adverse action by her employer. Ms. Menoken, therefore, offers no

justification to revisit her interference claim.

                                       IV.     CONCLUSION

                For the foregoing reasons, the Court will deny Plaintiff’s Motion for

Reconsideration. A memorializing Order accompanies this Memorandum Opinion.



Date: July 19, 2018                                                   /s/
                                                       ROSEMARY M. COLLYER
                                                       United States District Judge




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