UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) ALITA MACK, ) ) Plaintiff, ) ) v. ) Civil Action No. 15-793 (RMC) ) GEORGETOWN UNIVERSITY, ) ) Defendant. ) _________________________________ )

MEMORANDUM OPINION

Plaintiff Alita Mack alleges that she suffered discrimination and retaliation by her

then-employer Georgetown University in violation of the Americans with Disabilities Act

(ADA),

et seq. Defendant Georgetown University moved for summary

judgment on November 3, 2016, see Mot. [Dkt. 56], and this matter was referred to Magistrate

Judge G. Michael Harvey for a Report and Recommendation. See November 17, 2016 Minute

Order. Ms. Mack filed an opposition to Georgetown’s summary judgment motion and multiple

erata, see Opp’n [Dkt. 71]; Errata 1 [Dkt. 74]; Errata 2 [Dkt. 75], to which Georgetown replied.

See Reply [Dkt. 82]. Magistrate Judge Harvey proceeded to review the briefing carefully and

thoroughly and submitted his Report and Recommendation (R&R) to this Court on August 4,

2017. See R&R [Dkt. 87]. Ms. Mack filed a timely objection to the R&R, see Objection [Dkt.

88], Georgetown responded, see Response [Dkt. 89], and Ms. Mack was granted permission to

submit an amended objection. See Am. Objection [Dkt. 91].

Upon consideration of the R&R, amended objection, and response, and an

independent review of the underlying evidence, the Court will accept in full Magistrate Judge

Harvey’s Report and Recommendation and grant Georgetown’s motion for summary judgment.

1 I. BACKGROUND

Magistrate Judge Harvey’s Report and Recommendation contains a detailed

procedural history and factual background section, which the Court adopts and will not repeat in

full here. See R&R at 5-21.

Ms. Mack was hired by Georgetown as an Executive Assistant in the Department

of Public Safety on February 19, 2014. Def. Ex. 9 [Dkt. 57-9] at GU001982. Her supervisor

was Georgetown’s Chief of Police, Jay Gruber. Def. Ex. 10 [Dkt. 57-10] at GU002602. About

four months after Ms. Mack starting work, she submitted a disability accommodation request to

Michael Smith, the Director of Affirmative Action Programs at Georgetown. Def. Ex. 13 [Dkt.

57-13] at GU000360-01. Ms. Mack indicated that she had diabetes and requested eleven

accommodations including a discrete environment to monitor her blood sugar level, an area to

store food and medication, and flexibility to schedule medical appointments. Am. Compl. [Dkt.

14] ¶ 13. The accommodations were agreed upon and put into effect on July 24, 2014 with the

completion of an accommodation agreement. Def. Ex. 16 [Dkt. 57-16] at GU002659-61.

Ten days later, Ms. Mack complained of a mildew odor and possible mold in her

workspace. Def. Ex. 17 [Dkt. 57-17] at GU002679-81. Georgetown evaluated the space,

discovered a mold spot near Ms. Mack’s workspace, disinfected the mold, and replaced any

stained ceiling tiles. Def. Ex. 18 [Dkt. 57-18] at GU002750. A few days later, Ms. Mack

submitted another disability accommodation request form indicating she was suffering from a

respiratory illness, which was later identified as rhinitis, and requesting reassignment to a vacant

position.1 Ms. Mack was referred to the Human Resources department and put on temporary

1 “[R]hinitis refers to a heterogeneous group of nasal disorders characterized by [one] or more the following symptoms: sneezing, nasal itching, rhinorrhea, and nasal congestion.” Mark S. Dykewicz & Daniel L. Hamilos, Rhinitis and Sinusitis, 125 Journal of Allergy and Clinical 2 paid leave until arrangements could be made to move her workspace to another room. Def. Ex.

25 [Dkt. 57-25] at GU000466; Def. Ex. 26 [58-1] at GU000467. Because Ms. Mack’s second

accommodation request stemmed from a new disability, she was required to engage with

Georgetown and her physicians to develop a new plan under the ADA. For the next few weeks,

Georgetown attempted to get more information from Ms. Mack’s treating physicians, located a

new workspace for Ms. Mack, and conducted additional testing for mold and dust mites. Def.

Ex. 28 [Dkt. 58-3] at GU002756-57; Def. Ex. 29 [Dkt. 58-4] at GU002804-05; Def. Ex. 30 [Dkt.

58-5] at GU002991.

Meanwhile, beginning in August 2014, Chief Gruber expressed concerns with

Ms. Mack’s performance. Ms. Mack met with Chief Gruber on August 4, 2014 and again on

August 26, 2014 to discuss his concerns, including her frequent unapproved absences and

requests to work from home. Def. Ex. 19 [Dkt. 57-19] at GU00455-56; Def. Ex. 32 [Dkt. 58-7]

at GU000599-600.

Ms. Mack continued to request permission to work in a different building or

remotely and was informed that the essential functions of her position required her to be in the

office. Def. Ex. 34 [Dkt. 58-9] at GU002889-92. On August 28, 2014 Ms. Mack filed a charge

with the Equal Employment Opportunity Commission (EEOC) claiming Georgetown

discriminated against her by ignoring her requests for accommodation and harassed her in

retaliation for asserting her rights. Def. Ex. 41 [Dkt. 58-16] at GU003158-59.

Immunology S103, S103–07 (2010). “Allergic rhinitis is the most common type of rhinitis,” and can be caused by “proteins and glycoproteins in airborne dust mite fecal particles, cockroach residues, animal danders, molds, and pollens.”

It is often accompanied by allergic conjunctivitis and itching of the ears and throat.

3 Over the next two months, Georgetown continued to attempt to work with Ms.

Mack and her physicians to determine the necessary accommodations, but Ms. Mack prohibited

her physicians from communicating with Georgetown. Def. Ex. 5 [Dkt. 57-5] at KP_0010,

KP_0041-42, KP_0050. Chief Gruber’s dissatisfaction with Ms. Mack’s performance grew and

on October 14, 2014 Ms. Mack was suspended for three days “based on [her] continued

unacceptable work performance and misconduct regarding tardiness and failure to follow call-in

procedures, declining calendar appointments and subsequent untruthfulness, and refusals to meet

with [her] supervisor.” Def. Ex. 44 [Dkt. 58-19] at GU000809-11.

On October 17, 2014, Ms. Mack requested to be reassigned to a vacant position as

a reasonable accommodation under her July 2014 ADA plan. Def. Ex. 50 [Dkt. 58-25] at

GU003332. After consulting with Ms. Mack’s physician, Georgetown determined that her

diabetes (which was the disability at issue in the July 2014 accommodation plan) did not warrant

reassignment. Def. Ex. 55 [Dkt. 59-5] at GU003408-09. Georgetown continued to attempt to

work with Ms. Mack to provide any requested accommodations and in late November Ms. Mack

was placed on unpaid leave while Human Resources searched for a vacant position to which she

could be transferred. Def. Ex. 64 [Dkt. 59-14] at GU001789.

On January 29, 2015 Human Resources offered Ms. Mack a position as

Recruiting Coordinator in the Cawley Career Education Center and asked for a response by

February 2, 2015. Def. Ex. 72 [Dkt. 59-22] at GU003797. Ms. Mack failed to respond and after

meeting with her and evaluating other possible positions for which she was qualified,

Georgetown again extended an offer to Ms. Mack for a Recruiting Coordinator position and

indicated that failure to accept the position by March 5, 2015 would result in her termination.

4 Def. Ex. 75 [Dkt. 59-25] at GU003839. Ms. Mack failed to respond and on March 6, 2015

Georgetown terminated her employment. Def. Ex. 77 [Dkt. 60-2] at GU003903-04.

Ms. Mack filed a second EEOC charge against Georgetown on March 11, 2015,

Am. Compl. at 41, which was ultimately dismissed and Ms. Mack was informed of her right to

sue in federal court.

. Ms. Mack filed the initial complaint in this action on May 29,

2015. Compl. [Dkt. 1].

Ms. Mack’s objection also contains proposed undisputed material facts and cites

to evidence that was not a part of the record on summary judgment. To the extent those

additional facts are necessary to evaluate Ms. Mack’s objections they will be described below.

II. LEGAL STANDARD

A. Report and Recommendation

Rule 72(b) of the Federal Rules of Civil Procedure sets forth the procedure for

review of dispositive motions that have been referred to a magistrate judge for a Report and

Recommendation. Following the submission of a Report and Recommendation, any party may

file objections to the proposed findings and recommendations and the district judge “must

determine de novo any part of the magistrate judge’s disposition that has been properly objected

to.” Fed. R. Civ. P. 72(b)(3). “The district judge may accept, reject, or modify the

recommended disposition; receive further evidence; or return the matter to the magistrate judge

with instructions.”

However, “an objecting party is not permitted to present new initiatives

to the district judge, as the district court may review only those issues that the parties have raised

in their objections to the Magistrate Judge’s report.” Taylor v. District of Columbia,

, 79 (D.D.C. 2016) (internal citations omitted). A district court also has the

discretion to consider evidence outside the summary judgment record before the magistrate

judge. See Fed. R. Civ. P. 72(b)(3) (“The district judge may . . . receive further evidence.”). 5 B. Motion for Summary Judgment

Summary judgment should be granted pursuant to Federal Rule of Civil

Procedure 56 if “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson

v. Liberty Lobby, Inc.,

(1986). Summary judgment is properly granted against

a party who “after adequate time for discovery and upon motion . . . fails 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,

(1986).

In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the

nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson,

. A nonmoving party, however, must establish more than “[t]he mere existence of a

scintilla of evidence” in support of its position.

.

III. ANALYSIS

Ms. Mack objects to three specific findings in the Magistrate Judge’s Report and

Recommendation.

(1) Plaintiff has failed to establish facts sufficient to allow a reasonable jury to conclude that she would have been capable of performing the essential functions of her job even if she had been granted a reasonable accommodation.

(2) Plaintiff has failed to provide facts sufficient to establish that there was a vacant position for which she was qualified at Georgetown superior to the position that she was ultimately offered for reassignment.

(3) Finally as to her retaliation claim, the allegedly adverse actions that Plaintiff has identified are either too immaterial or insufficiently tied to her engagement in protected activity to support an ADA retaliation claim.

6 Am. Objection at 1-2 (numbers not in original); see also R&R at 2. The holdings challenged by

Plaintiff encompass the entirety of Magistrate Judge Harvey’s Report and Recommendation.

The Court will review de novo each conclusion.

A. Ability to Perform Essential Functions of the Position

In considering Ms. Mack’s claim that Georgetown failed to accommodate her

disability by permitting her to work offsite, Magistrate Judge Harvey evaluated whether “no

reasonable accommodation could permit [Ms. Mack] to perform the essential functions of her

position during the pertinent time period.” R&R at 29 (citing Buie v. Berrien,

(D.D.C. 2015)). An essential function is defined by the EEOC as “the fundamental

job duties of the employment position the individual with a disability holds or desires.”

(n)(1).

Evidence 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.

at § 1630.2(n)(3). Ms. Mack objects to the Magistrate Judge’s finding that because her

presence in the office was deemed necessary by Georgetown, no reasonable accommodation

would permit her to perform the essential functions of her position offsite as she requested.

7 In objection, Ms. Mack argues that it “would have been feasible” for her to

conduct her essential functions at an offsite location and cites the “University Local Telework

Policy,” as well as a list of individuals engaged in telework whom she claims were “similarly-

situated administrate employees.” Am. Objection at 22; see also Objection Ex. 8 [Dkt. 88-10].2

Ms. Mack’s statement that she would have been able to perform her duties from an offsite

location does not address the undisputed facts regarding the responsibilities and functions of her

position. Georgetown submitted the job description for Ms. Mack’s position, as well as

communications from Ms. Mack’s supervisor Chief Gruber, which were accepted by the

Magistrate Judge as uncontested and which demonstrated the need for her to be present in the

office to conduct her work. See Def. Ex. 10 at GU002602; Def. Ex. 35 [Dkt. 58-10] at

GU003017. The job description indicates that Ms. Mack was responsible for “working group

participation, answering phones/screening calls, . . . order[ing] office supplies, . . . digital and

paper filing, faxing, photocopying, . . . and other administrative and clerical responsibilities as

needed.” Def. Ex. 10 at GU002602. Ms. Mack has offered no evidence to support her argument

that she could perform these and the remainder of her duties offsite. Additionally, the existence

of a general telework policy at Georgetown—in which individuals with similar job titles to Ms.

Mack participate—does not establish that Ms. Mack’s position is one that permits teleworking.

2 Much, if not all, of Ms. Mack’s arguments and evidence submitted in support of her Objection were not included in the summary judgment record. While the Court “may” consider additional evidence, where no “compelling justification” exists for the failure to present the evidence courts generally decline to consider it. Chiari v. New York Racing Ass’n Inc.,

(E.D.N.Y. 2013). Ms. Mack indicated that she suffered technical difficulties when she was initially submitting her opposition to Georgetown’s summary judgment motion, see Am. Objection at 4-5, but does not explain why in the ensuing seven months between her submission and the Magistrate Judge’s Report and Recommendation she did not submit the documents in hard copy or attempt to resolve her technical issues. Despite finding no compelling reason to consider the additional evidence, even with it the Court finds no merit to Ms. Mack’s objections.

8 Similar, or even identical, job titles do not translate to identical essential functions or

responsibilities. It is conceivable that an executive assistant in one branch of the University

would be able to conduct their work offsite, while another would not. Ms. Mack’s direct

supervisor was Jay Gruber, Chief of Police at Georgetown University, whose role could well be

specifically focused on university property and require Ms. Mack’s presence on-site.

Court’s will typically “defer to the employer’s judgment as to what functions of a

job are essential,” and Georgetown has demonstrated that many of the essential functions of Ms.

Mack’s position required her presence in the office. Saunders v. Gallagher & Huguely Assocs.,

Inc.,

(D.D.C. 2010). Therefore, Georgetown did not fail to

accommodate Ms. Mack’s disability because no reasonable accommodation would have

permitted Ms. Mack to perform the essential functions of her position offsite.

B. Alternative Positions Available for Reassignment

Ms. Mack also objects to the Magistrate Judge’s holding that Georgetown did not

fail to accommodate her by not transferring her to another position. Specifically, Ms. Mack

argues that there was another vacant position available for which she was qualified and the

position that was offered to her was not equivalent to her current position. See Am. Objection at

25-33. An employee should be accommodated by reassignment to a vacant position if the

employee is able to perform the essential functions of the vacant job, with or without reasonable

accommodation. See Aka v. Wash. Hosp. Ctr.,

(D.C. Cir. 1998). “The

reassignment can only be to an existing, vacant job for which the plaintiff is qualified, and

positions to which other employees have a legitimate contractual or seniority right are not

considered vacant.” Harris v. Chao, No. 16-162,

, at *6 (D.D.C. July 6,

2017). It is a plaintiff’s burden to demonstrate that “there existed some vacant position to which

he or she could have been reassigned.”

; see also Alston v. WMATA,

, 9 82 (D.D.C. 2008) (“[P]laintiff bears both the burden of production and the burden of persuasion

on the question [of] whether a suitable vacancy existed at the time she sought transfer.”).

Ms. Mack repeats her argument here that she should have been placed in a Human

Resources Analyst position, but, as Magistrate Judge Harvey found, that position “was filled

before she and Georgetown could complete the ADA’s required interactive process.” R&R at

37. The EEOC regulations implementing the ADA explain in the definition of “reasonable

accommodation” that the “informal, interactive process . . . should identify the precise

limitations resulting from the disability and potential reasonable accommodations that could

overcome those limitations.”

(o)(3). The Human Resources Analyst position

identified by Ms. Mack in November of 2014 was filled before Georgetown’s Human Resources

office completed its evaluation of Ms. Mack’s limitations and identified the vacant position for

which she was qualified.

Additionally, employers are not required to place an accommodated employee in

her preferred position and Ms. Mack has failed to establish that the delay in finding an

alternative position was unreasonable. Courts consider numerous factors to determine if a delay

was unreasonable, such as “the length of the delay, the reasons for the delay, whether the

employer has offered any alternative accommodations while evaluating a particular request, and

whether the employer has acted in good faith.” Elzeneiny v. District of Columbia,

(D.D.C. 2015). The record is replete with examples of Georgetown’s good faith

efforts to find other reasonable accommodations for Ms. Mack, such as alternative office space,

repeated cleaning and testing of the relevant offices, and the installation of a special air purifier.

See R&R at 9-10, 17, 19 (citing Def. Ex. 29 at GU002805; Def. Ex. 30 at GU002990-91; Def.

Ex. 59 [Dkt. 59-9] at GU003594; Def. Ex. 72 at GU003797). Additionally, Georgetown

10 constantly sought to learn the scope of the necessary accommodation by contacting Ms. Mack’s

treating physicians, but Ms. Mack prevented this communication by instructing her providers not

to respond. See Def. Ex. 5 at KP_0010, KP_0041-42, KP_0050; Def. Ex. 62 [Dkt. 59-12] at

GU003616. The few months delay in offering a new position was not unreasonable when

Georgetown demonstrated it was providing other accommodations, actively looking for an

appropriate alternative position, and told Ms. Mack that it “may take some time to complete.”

For the first time in her current objection, Ms. Mack identifies the position of

Institutional Diversity, Equity & Affirmative Action3 (IDEAA) Executive Assistant as another

alternative position for which she was qualified and should have been offered. See Am.

Objection at 26. Ms. Mack argues that Georgetown should have known that the job was going to

become available and that the EEOC includes positions “that the employer knows . . . will

become available within a reasonable amount of time” as relevant vacant positions. EEOC

Enforcement Guidance, No. 915.002, Oct. 17, 2002,

https://www.eeoc.gov/policy/docs/accommodation.html

#reassignment (last visited Sept. 15, 2017). The previous IDEAA Executive Assistant submitted

his resignation letter on February 23, 2015, the same day that Ms. Mack was given the final

opportunity to accept or reject the Recruiting Coordinator position. See R&R at 20; Def. Ex. 75

at GU003839. Ms. Mack provides no evidence that would allow the Court to find that anyone

involved in her ADA accommodation process was or should have been aware that the IDEAA

Executive Assistant position was going to become available or even that they became aware on

3 The Office of Institutional Diversity, Equity & Affirmative Action at Georgetown University focuses on “promot[ing] a deep understanding and appreciation among the diverse members of the University Community.” Georgetown University, Institutional Diversity, Equity & Affirmative Action, https://ideaa.georgetown.edu/ (last visited Sept. 22, 2017).

11 February 23, 2015. Therefore, Ms. Mack has failed to meet her burden to show that a suitable

vacancy existed at the time she refused Georgetown’s offer of the Recruiting Coordinator

position. The Court will grant Georgetown’s motion for summary judgment on the claim that it

failed to accommodate Ms. Mack by failing to transfer her to a positon other than Recruiting

Coordinator.

C. Materiality of the Alleged Adverse Actions

Ms. Mack’s final objection challenges the Magistrate Judge’s determination that

she failed to identify adverse actions that were material or sufficiently tied to her protected

activity to support her retaliation claim. Despite her objection, Ms. Mack failed to provide

additional facts or argument concerning it. It is therefore waived. See LCvR 72.3(b) (“The

objections shall specifically identify the portions of the proposed findings and recommendations to

which objection is made and the basis for the objection.”); see also Mario v. P & C Food Markets,

Inc.,

(2d Cir. 2002) (holding that plaintiff’s objection to a Report and

Recommendation was “not specific enough” to “constitute an adequate objection under . . . Fed.

R. Civ. P. 72(b)”). Ms. Mack argues briefly that Chief Gruber was inflexible and “harsh” in

response to her requests for accommodation. See Am. Objection 33-34. Ms. Mack fails to

identify the basis for her objection and this Court agrees with the Magistrate Judge’s holding that

no reasonable jury could conclude that the alleged threats or “harsh” actions from her supervisor

were adverse employment actions. The Court has reviewed Magistrate Judge Harvey’s analysis

and will accept the Report and Recommendation and grant summary judgment to Georgetown

University on Ms. Mack’s retaliation claim.

12 IV. CONCLUSION

Accordingly, the Court will accept Magistrate Judge Harvey’s Report and

Recommendation and grant Georgetown University’s Motion for Summary Judgment. A

memorializing Order accompanies this Opinion.

Date: September 27, 2017 /s/ ROSEMARY M. COLLYER United States District Judge

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