UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEIRDRE DUFFY,

Plaintiff,

v. Civil Action No. 16-1178 (RDM) EUGENE LOUIS DODARO, Comptroller General of the United States, 1

Defendant.

MEMORANDUM OPINION AND ORDER

Deirdre Duffy is a disabled veteran who was employed as a Band IIA Communications

Analyst at the Government Accountability Office (“GAO”) from July 2013 until December

2016. Dkt. 31 at 2–3. Proceeding pro se, Duffy asserts fifteen claims against her former

employer, including claims under several federal employment discrimination statutes, the

Federal Tort Claims Act (“FTCA”),

(b), 2671–2680, the due process clause of

the Fifth Amendment, and a claim for breach of contract. Dkt. 31 at 87–102. The GAO, in turn,

moves to dismiss all of her claims or, in the alternative, for summary judgment with respect to

her Americans with Disabilities Act (“ADA”),

et seq., claim for failure to

accommodate. Dkt. 33 at 1; Dkt. 33-1 at 13.

For the reasons explained below, the Court will GRANT in part and will DENY in part

the GAO’s motion.

1 Comptroller General Dodaro is automatically substituted Reginald E. Jones as the Defendant pursuant to Fed. R. Civ. Pro. 25(d). I. BACKGROUND

A. Factual Background

The following facts are taken from Duffy’s second amended complaint, Dkt. 31, which

the Court must accept as true for purposes of the GAO’s motion to dismiss, see Klayman v.

Zuckerberg,

(D.C. Cir. 2014). Duffy suffers from chronic Post Traumatic

Stress Disorder (“PTSD”) related to her military service. Dkt. 31 at 3 (Second Am. Compl.

¶¶ 1–2). Her PTSD symptoms include “hyperarousal,” which causes her nervous system to

“operate on full alert” and “impair[s] her ability to sleep, learn, and remember.”

at 3–4

(Second Am. Compl. ¶¶ 3–4). Unless properly managed, this can cause her physical harm, such

as “damage [to her] endocrine system, reduce[d] immunity, [and] . . . autoimmune issues.” Id.

at 4 (Second Am. Compl. ¶ 4). To minimize the physical and psychological effects of her PTSD,

Duffy “must meticulously manage all facets of her immediate environment . . . as well as her

diet, exercise, social activities, sleep hygiene, and thought processes.” Id. at 5 (Second Am.

Compl. ¶ 6).

Duffy applied for a position as a Band I Communications Analyst at the GAO in

September 2009. Dkt. 31 at 35 (Second Am. Compl. ¶ 71). In order to receive a veteran’s

preference in the GAO’s consideration of her application, Duffy submitted her discharge

paperwork from U.S. military, which states that she has a “Disability – Permanent.” Id. She was

notified that she was among the “most qualified” for the position and that “an interview would be

scheduled.” Id. (Second Am. Compl. ¶ 72). “No interview was scheduled,” and Duffy “never

received any written notice of a hiring decision” with respect to that position. Id.

In February 2013, Duffy once again applied for position at the GAO, this time for a job

as a Band II Communications Analyst. Id. (Second Am. Compl. ¶ 74). As with her first

2 application, Duffy submitted her military discharge paperwork to the GAO, which again

reflected her permanent disability. Id.; see also Dkt. 38-1 at 2–4, 57–60. Duffy was invited to

interview for a position working with the GAO’s Strategic Issues (“SI”) mission team, and,

during the interview process, she was told that the position “would be located in . . . the San

Francisco, Boston, or Atlanta field offices based upon [the] selectee[’s] preference.” Dkt. 31 at

35 (Second. Am. Compl. ¶ 75). She “was also invited to interview for a Band II

Communications Analyst position within [the] GAO’s Strategic Planning and External Liaison

(‘SPEL’) office” and was told “by the Hiring Manager for this position that it was located [at

the] GAO[’s] Headquarters in Washington[,] D.C.” Id. at 36 (Second Am. Compl. ¶ 76).

In May 2013, the GAO offered Duffy a position working with either the SI mission team

or the SPEL office. Id. at 37 (Second Am. Compl. ¶ 79). After she called to accept the position

with the SI mission team and elected to work in San Francisco in order to be closer to her home

in Seattle, the GAO informed Duffy that, despite what she had had previously been told, the SI

position was available only in Washington, D.C. Id. (Second Am. Compl. ¶¶ 81–82). Duffy

then asked if the SPEL position was still available and was told that the position had been filled.

Id. (Second Am. Compl. ¶ 83). As a result, Duffy accepted the position with the SI mission team

in Washington, D.C. Id. (Second Am. Compl. ¶ 84). She began work at the GAO as a Band IIA

Communications Analyst on July 1, 2013. Id. at 38 (Second Am. Comp. ¶¶ 85–86).

In September 2013, several months after starting work, Duffy “met with a member of

the” GAO’s human resources office “to discuss concerns that she had [about] sirens that went off

continuously outside the office” and “the intensity of the work culture in the [D.C.] GAO office”

and how these “conditions” might negatively affect “her PTSD.” Id. at 44 (Second Am. Compl.

¶ 115). The human resources office referred her to a website and to other information regarding

3 reasonable accommodations and, about a month later, Duffy requested “episodic telework

arrangements so she could travel back and forth to her home” in the Seattle area in order “to

manage her PTSD symptoms and obtain respite from the urban stressors.” Id. (Second Am.

Compl. ¶ 117). Duffy made this request to her supervisor, Brian James, and it was approved by

the SI mission team’s Managing Director, Chris Mihm. Id. at 35, 44 (Second Am. Compl. ¶¶

75,118).

This “episodic telework arrangement[]” continued until at least October 2014, and,

during that time, Duffy “made key contributions” to the SI mission team’s work, including

training other staff members, id. at 44, 47 (Second Am. Compl. ¶¶ 117, 128–29), helping the

“Assistant Director during a staffing shortfall,” id. at 47 (Second Am. Compl. ¶ 129), and aiding

in the production of at least three different GAO reports that received “significant media

attention,” id. In recognition of her work, Duffy received time off awards, praise from her team

and supervisors, as well as additional work due to increased demand for her skills. Id. (Second

Am. Compl. ¶¶ 129–30).

In October 2014, Duffy developed a “severe dental abscess” while visiting Seattle,

“which required an emergency root canal” and a month-long recovery there. Id. at 53 (Second

Am. Compl. ¶ 151). James approved Duffy’s request to telework from Seattle during this period.

Id. Upon returning to Washington, D.C. at the end of that month, however, Duffy began to

experience “a systemic breakdown of her health as a result of stimuli overload and/or chronic

hyperarousal of her nervous system.” Id. at 53 (Second Am. Compl. ¶¶ 151–52). As a result, in

November 2014, she “submitted a formal Reasonable Accommodation request to GAO’s

Reasonable Accommodations Coordinator, Colleen Marks . . . , seeking to work full time from

her home in the Seattle area” or, in the alternative, “reassignment to the San Francisco field

4 office or to a mission team with a presence in the Seattle office.” Id. at 54 (Second Am. Compl.

¶ 155). After Duffy notified James of her “formal accommodation [r]equest,” he told her “don’t

do that” and said that she “should instead request accommodation [through] the short term

telework program” so her supervisors could “approve [it] internally.” Id. (Second Am. Compl.

¶ 156). Based on that advice, Duffy withdrew her formal accommodation request. Id. (Second

Am. Compl. ¶ 157). Duffy then requested a six-month short-term telework arrangement, which

was approved. Id. at 54–55 (Second Am. Compl. ¶ 158). Duffy began working full-time from

home near Seattle on December 1, 2014. Id. at 55 (Second Am. Compl. ¶ 159).

Between March 2015 and May 2015, Duffy “developed serious complications related to

an improperly treated dental condition” that prevented her from returning to Washington, D.C.

by May 30, 2015, when her six-month telework arrangement was scheduled to conclude. Id. at

59–60 (Second Am. Compl. ¶¶ 167, 174). At James’s suggestion, Duffy requested and was

granted a second short-term telework arrangement allowing her to continue to work from the

Seattle area from June 2015 through November 2015. Id. at 60 (Second Am. Compl. ¶¶ 170–

71). After Duffy expressed concerns to James about her ability to return to Washington, D.C. in

December 2015, James recommended she “apply for a formal reasonable accommodation

[through] Colleen Marks’s [disability program] office.” Id. at 60–61 (Second Am. Compl. ¶¶

173–74). When Duffy asked Marks for “information about what she needed to submit with her

formal Reasonable Accommodations . . . request,” “Marks stated that [Duffy] needed to have her

doctor provide the answers to a ‘six-point questionnaire’” but “did not mention or provide any

internal guidance on additional criteria related to granting [the] request.” Id. at 61 (Second Am.

Compl. ¶ 175). Duffy submitted her formal request in early October 2015, which included the

completed six-point questionnaire along with additional medical documentation from two other

5 doctors and a medical release permitting GAO staff to speak directly with Duffy’s treating

clinician. Id. at 64 (Second Am. Compl. ¶ 187).

On October 22, 2015, Duffy met with Marks and Lisa Briscoe, a Reasonable

Accommodations Specialist, to discuss her formal accommodation request. Id. at 63, 65 (Second

Am. Compl. ¶¶ 184, 190). Duffy alleges that, at this meeting, Marks “verbally denied” her

request and “insisted” that Duffy had “not established (1) the presence of a disability under the

ADA or (2) that functional limitations of that disability exist.” Id. at 65 (Second Am. Compl.

¶ 190). When Duffy sought additional information, including the written policies supporting the

denial of her request, Marks refused to furnish it and stated that, if Plaintiff disagreed with the

decision, Marks “could convene the Accommodation Committee.” Id. at 66 (Second Am.

Compl. ¶ 190). Marks cautioned Duffy, however, that if she convened the Accommodation

Committee, “[t]he Comptroller of the United States—and several members of the Executive

Committee—are going to learn all about your ‘mental disorder’” and asked, “Would you like me

to do that?” Id. Duffy responded “that under no circumstances would she permit Marks to ‘out’

her to the” Accommodations Committee “until Marks provided written proof that the denial was

legitimate policy,” and Duffy again “requested to see the written policy and the criteria list for

the kinds of doctors, letters, etc. that [the] GAO required.” Id. According to Duffy, “Marks

repeatedly ignored her request for policy documentation.” Id.

Duffy alleges that Marks did inform her that the medical documentation she submitted in

support of the request was “invalid,” id. at 65, 67 (Second Am. Compl. ¶ 190), and that “she

needed a full medical evaluation and a report of all [of Duffy’s] symptoms so Marks could ‘see

just how disabled you really are,’” id. at 67 (Second Am. Compl. ¶ 190) (emphasis in original).

According to the second amended complaint, Marks told Duffy that the letter she had submitted

6 from her physician “was invalid because Marks ‘didn’t know who this person is’” and that she

“asked [Duffy] if she would be willing to submit to a medical examination by a clinician chosen

by Marks.” Id. at 67–68 (Second Am. Compl. ¶ 190). Duffy refused and asserted that she had

already been found to have a permanent disability by the Veterans Administration (“VA”) and

had already established an “existing disability.” Id. at 68 (Second Am. Compl. ¶ 190). Briscoe

then stated that “PTSD . . . changes over time[] and [that Duffy] might not even have it

anymore.” Id. at 68 (Second Am. Compl. ¶ 190). Duffy further claims that Marks stated, “[j]ust

because the VA says you have a permanent disability doesn’t mean you do. The fact that you

work full-time for [the] GAO proves that you are not 100% disabled.” Id. (emphasis omitted).

Duffy accused Briscoe and Marks of “harassment” and indicated that she “intended to

report them for it.” Id. at 69 (Second Am. Compl. ¶ 191). After the meeting, Duffy informed

Marks “in writing that all further determinations on her Reasonable Accommodations request

would require [Equal Employment Opportunity (‘EEO’)] involvement and assurances that the

process was fair.” Id. (Second Am. Compl. ¶ 194). The day after the meeting, Duffy contacted

the GAO’s Office of Opportunity and Inclusiveness (“O&I”), to initiate the EEO counseling

process. Id. at 70 (Second Am. Compl. ¶ 196).

In mid-November 2015, Duffy submitted a request for accommodation that would permit

her to telework just from December 1, 2015 until the end of January 2016. Id. at 72 (Second

Am. Compl. ¶ 204). Marks sought additional information from one of Duffy’s doctors before

she would consider the request, notwithstanding the fact that Marks already had a letter from that

doctor and the doctor was out of the country. Id. (Second Am. Compl. ¶ 205). Duffy’s request

“was not granted.” Id. (Second Am. Compl. ¶ 206). Around the same time, Duffy underwent

surgery to remove an infected bone from her upper jaw. Id. at 73 (Second Am. Compl. ¶ 209).

7 She “requested and was approved for sick leave to recover.” Id. At the end of November 2015,

Duffy’s short-term telework arrangement expired, and she thus requested unpaid Family and

Medical Leave Act (“FMLA”),

et seq., leave “to avoid being marked AWOL

from her position.”

at 73–74 (Second Am. Compl. ¶¶ 210–11). Her FMLA request was

approved through March 2016.

(Second Am. Compl. ¶ 213).

Meanwhile, the EEO process was ongoing. On February 4, 2016, Duffy filed a formal

EEO complaint with O&I, “requesting . . . that the hostile workplace cease and that her

reasonable accommodation of ongoing telework be reinstated/continued.”

(Second Am.

Compl. ¶ 223). Duffy “was never contacted by anyone from O&I regarding her formal EEO

complaint,” and the complaint was dismissed on March 21, 2016.

(Second Am. Compl.

¶¶ 224, 226)

Upon the expiration of her FMLA leave, Duffy requested further FMLA leave through

July 31, 2016, and that request was granted.

(Second Am. Compl. ¶ 229). On May 25,

2016, Duffy “again requested that Marks grant her [a] reasonable accommodation,” and she

submitted “the medical documentation submitted previously,” “an analysis of her prior

submissions” explaining why she “had met and exceeded [the] GAO’s requirements,” and “a

letter dated April 19, 2016, from her treating” physician. Dkt. 31 at 78 (Second Am. Compl.

¶¶ 233–234). Marks again “denied [Duffy’s] request for [a] reasonable accommodation,”

concluding that the medical documentation Duffy submitted was insufficient to support the

accommodation she requested because it failed to “provide information concerning the nature

and severity of the medical conditions and current functional limitations imposed by those

conditions.”

at 78–79 (Second Am. Compl. ¶ 236). Duffy requested information from Marks

8 about the possibility of personally appearing before the Accommodations Committee but did not

receive any response.

(Second Am. Compl. ¶¶ 238–39).

On June 3, 2016, Duffy “applied for a no-cost transfer” to the GAO’s Seattle field office

but alleges that this request was never addressed.

(Second Am. Compl. ¶¶ 243–44).

Duffy also made “a transfer request via the Employee Preference Survey.”

(Second

Am. Compl. ¶ 247). The GAO did not grant either request.

(Second Am. Compl.

¶ 244) (no-cost transfer request);

(Second Am. Compl. ¶ 251) (Employee Preference

Survey request). On July 31, 2016, Duffy requested leave without pay through October 31,

2016, which the GAO granted.

(Second Am. Compl. ¶ 248). In September 2016, she

asked for an extension of that leave beyond October 31, 2016, and the GAO approved that

request as well but informed Duffy that her unpaid leave could not be extended “indefinitely.”

at 82–83 (Second Am. Compl. ¶ 255). On December 1, 2016, Duffy formally resigned from

her position.

(Second Am. Compl. ¶ 259).

B. Procedural Background

Duffy filed this action on June 20, 2016, while still an employee of the GAO. See Dkt. 1.

Her initial complaint, which was prepared by counsel, included a single claim: that the GAO

violated the Rehabilitation Act of 1973 (“Rehabilitation Act”),

et seq., when it

denied Duffy’s reasonable accommodation requests.

at 8–9. Duffy’s counsel subsequently

withdrew, Dkt. 17; Minute Order (Nov. 30, 2016), and Duffy, proceeding pro se, filed her first

amended complaint, which still advanced a single claim under the Rehabilitation Act, see Dkt.

19 at 20. With leave of Court, Duffy later filed her second amended complaint, which asserts

fifteen claims, including claims under the Rehabilitation Act, the ADA, and Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16, and claims for breach of contract,

9 defamation, intentional infliction of emotional distress, and civil conspiracy. Dkt. 31 at 87–104.

Duffy also alleges that the GAO constructively discharged her without due process, in violation

of the Fifth Amendment. Id. at 102. The GAO now moves to dismiss all of Duffy’s claims for

lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be

granted, and moves, in the alternative, for summary judgment with respect to Duffy’s failure-to-

accommodate claims on the ground that she affirmatively abandoned her request for an

accommodation. Dkt. 33 at 1; Dkt. 33-1 at 13.

II. LEGAL STANDARD

The GAO moves to dismiss under both Federal Rule of Civil Procedure 12(b)(1) and

12(b)(6) and moves, in the alternative, for partial summary judgment under Federal Rule of Civil

Procedure 56.

A motion to dismiss under Rule 12(b)(1) challenges the Court’s jurisdiction to hear a

claim and may raise a “facial” or a “factual” challenge to the Court’s jurisdiction. A facial

challenge asks whether the plaintiff has alleged facts sufficient to establish the Court’s

jurisdiction, while a factual challenge asks whether “the complaint [as] supplemented by

undisputed facts evidenced in the record, or the complaint [as] supplemented by undisputed facts

plus the [C]ourt’s resolution of disputed facts,” Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992), establish that the Court has jurisdiction. The plaintiff bears the burden of

establishing that the Court has subject matter jurisdiction. See Lujan v. Defs. of Wildlife,

(1992). Courts must construe pro se pleadings “liberally” and must hold pro se

pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus,

(2007) (per curiam) (quoting Estelle v. Gamble,

(1976)).

10 A motion to dismiss for failure to statute a claim under Rule 12(b)(6), in contrast, tests

the legal sufficiency of the allegations contained in the complaint. A complaint must contain “‘a

short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to

‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”

Bell Atl. Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion to dismiss, a plaintiff must furnish “more than labels and conclusions” or “a formulaic

recitation of the elements of a cause of action.”

Instead, the complaint’s “[f]actual allegations

must be enough to raise a right to relief above the speculative level, on the assumption that all

the allegations in the complaint are true (even if doubtful in fact).”

(citations omitted).

Finally, a court’s adjudication of a motion for summary judgment under Rule 56 asks

whether the moving party is legally entitled to prevail based on the undisputed facts. The Court

will grant summary judgment if the movant shows “that there is no genuine dispute as to any

material fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also

Anderson v. Liberty Lobby, Inc.,

, 247–48 (1986). A fact is “material” if it is

capable of affecting the outcome of the litigation. Holcomb v. Powell,

(D.C.

Cir. 2006). A dispute is “‘genuine’ if ‘the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.’”

(quoting Anderson,

) “A party asserting

that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular

parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).

III. ANALYSIS

Duffy’s second amended complaint asserts fifteen different claims, including claims

under the ADA, the Rehabilitation Act, and Title VII and claims for breach of contract,

11 defamation, intentional infliction of emotional distress, civil conspiracy, and a violation of her

right to due process. Dkt. 31 at 87–104. Several of the GAO’s challenges to Duffy’s claims are

easily resolved and thus the Court begins with those.

A. Title VII of Civil Rights Act

The GAO argues that Duffy’s Title VII claims (Counts VII, IX, and X) must be

dismissed because the second amended complaint does not contain any allegations of

discrimination on the basis of any of the characteristics protected by that statute. Dkt. 33-1 at

14–15. Title VII prohibits discrimination on the grounds of “race, color, religion, sex, or

national origin,” 42 U.S.C. § 2000e-2(a), but not disability, see Sledge v. District of Columbia,

(D.D.C. 2014). Because the second amended complaint says nothing about

discrimination based on Duffy’s race, color, religion, sex, or national origin, the Court must

dismiss Duffy’s Title VII claims for failure to state a claim upon which relief can be granted.

See Fed. R. Civ. P. 12(b)(6).

B. Breach of Contract Claim

The GAO also moves to dismiss Duffy’s breach of contract claim (Count XIV) arguing

that the Court lacks jurisdiction over it. Dkt. 33-1 at 15–16. The Court agrees. “In suits against

the government, subject-matter jurisdiction turns on at least ‘two different jurisdictional

questions.’” Yee v. Jewell, 228 F. Supp.3d 48, 58 (D.D.C. 2017) (quoting Trudeau v. FTC,

(D.C. Cir. 2006)). “First, has Congress provided an affirmative grant of subject-

matter jurisdiction? And, second, has Congress waived the United States’s immunity to suit?”

The Tucker Act,

et seq., provides the exclusive waiver of sovereign

immunity for cases against the United States based on contracts. Spectrum Leasing Corp. v.

12 United States,

, 895 & n.8 (D.C. Cir. 1985). Although district courts have

concurrent jurisdiction over Tucker Act claims for “damages” of no more than $10,000, the

United States Court of Federal Claims has exclusive jurisdiction under the Tucker Act of claims

for “damages” in excess of $10,000. See

(a)(2). Because Duffy seeks damages

in excess of $10,000, see Dkt. 31 at 103 (seeking “full backpay and front pay” as well as “l[o]st

wage increases, promotions, and fringe benefits” and “losses to pension, social security, and

other retirement accounts,” among other forms of monetary relief), the Court lacks jurisdiction

over her claim for breach of contract.

C. Tort Claims

The GAO further moves to dismiss Duffy’s D.C. law tort claims (Counts XI, XII, XIII)

for lack of subject-matter jurisdiction. Dkt. 33-1 at 17. Although the second amended complaint

lists several defendants including Marks and Briscoe, among others, Dkt 31 at 3, Duffy has

served only the GAO, Dkt. 8 at 2 (summons accepted by employee authorized to receive service

on behalf of the agency); see also Fed. R. Civ. P. 4, and counsel has appeared only on behalf of

Reginald Jones, see Dkt. 9, who served as the Managing Director of the GAO’s Office of

Opportunity & Inclusiveness at the relevant time, and the GAO itself, Dkt. 33. The United

States—and “public officials sued in their official capacities,” Wilson v. Dep’t of Transp.,

(D.D.C. 2011), are subject to suit for damages only if Congress has waived the

sovereign immunity of the United States. The Federal Tort Claims Act provides a “limited

waiver of sovereign immunity” and governs what tort claims can be brought against the United

States. Wilson,

; Sloan v. Dep’t of Housing and Urban Dev.,

(D.C. Cir. 2001). Given this background, the Court now addresses each of Plaintiff’s

common law tort claims in turn.

13 Duffy’s claim for defamation must be dismissed because claims for “libel” and “slander”

are specifically excluded from the FTCA’s waiver of sovereign immunity.

(h).

Courts have interpreted this exclusion to generally bar defamation claims. See Gardner v.

United States,

, 737 n.1 (D.C. Cir. 2000) (“[Plaintiff’s] defamation claim against the

United States is barred, because suits for libel or slander are prohibited under the Federal Tort

Claims Act.”). Because “the FTCA does not waive immunity for claims of defamation,” Wilson,

, Duffy’s defamation claim must be dismissed for lack of subject-matter

jurisdiction.

As Defendant points out, Dkt. 33-1 at 18, Duffy’s claims for intentional infliction of

emotional distress and civil conspiracy lie beyond the Court’s jurisdiction for a different reason:

Duffy failed to exhaust her administrative remedies with respect to those claims, as required by

the FTCA. An FTCA claimant may not bring suit until she has first presented her claim to the

agency, and the agency has finally denied it. See

(a). To satisfy this

requirement, “a claimant [must] file (1) a written statement sufficiently describing the injury to

enable the agency to begin its own investigation, and (2) a sum-certain damages claim.” GAF

Corp. v. United States,

(D.C. Cir. 1987).

According to the unrebutted declaration of Joan M. Hollenbach, the Managing Associate

General Counsel of the GAO and the head of the GAO’s Legal Services group, Duffy has not

filed any administrative FTCA claims with the GAO. See Dkt. 33-11 at 2. (Hollenbach Decl.

¶ 2); see also Herbert,

(permitting courts to consider outside evidence in

evaluating a motion to dismiss under Rule 12(b)(1)). Duffy did file an EEO complaint with

GAO, see Dkt. 33-7, but that complaint does not assert a tort claim and does not include a sum-

certain claim of damages,

Because Duffy failed to make a “presentment” as required by

14 § 2675(a), the Court lacks jurisdiction to consider Duffy’s remaining tort claims. See GAF

Corp.,

(“Presentment is mandatory” under the FTCA “to

determine . . . jurisdiction”).

The Court will, accordingly, dismiss all of Duffy’s common law tort claims for lack of

jurisdiction. See Fed. R. Civ. P. 12(b)(1).

D. Constitutional Claim

The GAO moves to dismiss Duffy’s Fifth Amendment due process claim (Count XV) on

the ground that the ADA “is the exclusive remedy” for claims alleging disability discrimination

or failure to accommodate a disability. Dkt. 33-1 at 19–20. Federal employees may not recast

Title VII claims as constitutional claims for employment discrimination. Ethnic Emps. of

Library of Congress v. Boorstin,

, 1414–15 (D.C. Cir. 1985) (applying Brown v.

GSA,

, 832–33 (1976)). At the same time, however, the existence of a statutory

cause of action does not typically preclude claims that are not cognizable under the statute. In

Ethnic Employees of Library of Congress, for example, the D.C. Circuit dismissed constitutional

claims that merely restated claims that were cognizable under Title VII, but it allowed other

constitutional claims–including a due process claim—to proceed because Title VII did not

provide a remedy for those claims. Id. at 1415 (“Nothing in [Title VII’s] history even remotely

suggests that Congress intended to prevent federal employees from suing their employers for

constitutional violations against which Title VII provides no protection at all.”).

As drafted, Duffy’s second amended complaint does not clearly state a cognizable due

process claim. It is possible that Duffy could assert a due process claim that does not merely

replicate her ADA claims. But the problem is that she merely alleges that the GAO “deliberately

and without due process deprive[d] [her] of her property interest in her position as a

15 Communications Analyst Band II” and that it “did so with the intention to so harm [her] that

should would have no resources with which to pursue a fair and just resolution of her

complaint.” Dkt. 31 at 102 (Second Am. Compl.). Because the Court cannot discern from these

bare allegations whether Duffy intends to allege a claim that differs from her ADA claims and, if

so, in what way the claims differ, the Court will dismiss Count XV pursuant to Federal Rule of

Civil Procedure 8. Rule 8 requires a plaintiff to plead facts sufficient to “give the defendant fair

notice of what that . . . claim is and the grounds upon which it rests.” Twombly,

(quoting Conley,

). As drafted, Count XV fails to provide the GAO or the Court

with sufficient notice of the grounds upon which the claim rests; the GAO cannot meaningfully

respond to it and the Court cannot determine whether it states a claim.

The Court will, accordingly, dismiss Count XV without prejudice.

E. Americans with Disabilities Act

Duffy asserts seven claims under the ADA, see Dkt. 31 at 87–95, which applies to the

GAO by virtue of

(1). Specifically, she brings ADA claims for disability

discrimination (Count I), hostile work environment (Count II), denial of a reasonable

accommodation (Count III), disability discrimination on the basis of mental illness (Count IV),

disability harassment (Count V), disparate treatment (Count VI), and retaliation (Count VII). See

Dkt. 31 at 87–95. The GAO moves to dismiss each of these claims on the basis that Duffy did

not exhaust her administrative remedies and also moves to dismiss Duffy’s hostile work

environment claim for failure to state a claim. Dkt. 33-1 at 20–23. In the alternative, the GAO

seeks partial summary judgment on Duffy’s reasonable-accommodation claim.

at 23–26.

16 1. Exhaustion

“Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must

exhaust their administrative remedies.” 2 Marshall v. Fed. Express Corp.,

(D.C. Cir. 1997) (citing

(a); Park v. Howard Univ.,

, 907–09 (D.C.

Cir. 1995)). But because the GAO is an agency of the legislative branch of the U.S. government,

see Bowsher v. Synar,

, 731–32 (1986), the usual procedures for exhausting

administrative remedies for ADA claims against private employers do not apply, see

(5)(B) (“The term ‘employer’ does not include . . . the United States.”). Congress,

instead, provided that employees of the GAO may invoke the enforcement mechanisms typically

available for ADA cases, “except that the authorities of the Equal Employment Opportunity

Commission shall be exercised by the chief official of the” GAO.

(5); see

2 Lack of exhaustion under the ADA is an affirmative defense, which the defendant has the burden of proving. Adams v. District of Columbia,

(D.D.C. 2010) (citing Brown v. Marsh,

(D.C. Cir. 1985)). Ordinarily, a party seeking to assert an affirmative defense must wait to do so until a motion for summary judgment; plaintiffs are not required to anticipate affirmative defenses and to plead facts sufficient to avoid those defenses, and thus a defendant cannot move to dismiss under Rule 12(b)(6) on the mere ground that the complaint fails to allege facts that, if taken as true, would overcome the affirmative defense. See Wright & Miller, Federal Practice and Procedure § 1277; see also Jones v. Bock,

(2007) (clarifying that where exhaustion is non-jurisdictional, plaintiffs “are not required to specially plead or demonstrate exhaustion in their complaints”). But if the complaint itself alleges facts that establish the affirmative defense, the defendant may rely on those factual allegations to support a motion to dismiss under Rule 12(b)(6). See Calderon v. Berryhill, No. 17-cv-494,

, at *4 (D.D.C. Sept. 20, 2019). The defendant prevails, however, only if the validity of the affirmative defense is evident on the face of the complaint. See Smith– Haynie v. District of Columbia,

, 578–79 (D.C. Cir. 1998). Here, because the GAO moves in the alternative for summary judgment, the Court may consider the administrative materials attached to its motion. But, because the GAO does not include assertions of fact relating to exhaustion in its statement of undisputed material facts, Dkt. 33-2, the Court limits its analysis to the allegations contained in the second amended complaint.

17 also

(a). Under GAO regulations, a “charge alleging prohibited discrimination”

in violation of the ADA is subject to “GAO Order 2713.2.”

(a). Under that

Order, in turn, “[a]n aggrieved person must contact an O&I counselor within 45 days of the date

of the matter alleged to be discriminatory.” Dkt. 33-6 at 9. Subject to certain exceptions, the

O&I counselor then has 30 days to conduct a final interview with the aggrieved person, and, “[i]f

the matter has not been resolved to the satisfaction of the aggrieved person, that person [must] be

informed . . . of the right to file [an administrative] discrimination complaint” within fifteen

“days of receipt of the notice.”

at 10–11. “[T]he procedural requirements of . . . the ADA

. . . must be assessed on a claim-by-claim basis and . . . satisfaction of the procedural

requirements for a ‘relate[d]’ act of discrimination is insufficient, except in those cases in which

the ‘very nature’ of the claim ‘involves repeated conduct.’” Hargrove v. AARP,

, 119 (D.D.C. 2016) (quoting Nat’l R.R. Passenger Corp. v. Morgan,

, 114–15

(2002)).

Here, Duffy alleges that she first sought EEO counseling on October 23, 2015, Dkt. 31 at

70 (Second Am. Compl. ¶ 196), and that she filed her formal EEO complaint through O&I on

February 4, 2016, asserting a hostile work environment claim and a failure to accommodate

claim, id. at 76 (Second Am. Compl. ¶ 223). As explained below, these steps were sufficient to

preserve Duffy’s hostile work environment claim and at least a portion of her failure to

accommodate claim. They were not sufficient, however, to preserve her ADA retaliation claim.

Counts II and V of the second amended complaint both allege that Duffy was subjected

to a hostile work environment because of her disability. Dkt. 31 at 88–89, 91–92. As the

Supreme Court has explained, the “very nature” of a hostile work environment claim “involves

repeated conduct.” Morgan,

. As a result, as long as one “act contributing to the

18 claim” took place within the statutory period—here, within 45 days of Duffy seeking EEO

counseling—“the entire period of the hostile environment may be considered for the purposes of

determining liability.”

. And, here, Duffy’s O&I complaint contains allegations that

Marks made derogatory comments about her disability during a meeting on October 22, 2015—

the day before she first contacted the O&I counselor. See Dkt. 31 at 65–70 (2d Am. Compl. ¶

190–96). Accordingly, the Court rejects the GAO’s argument that “Plaintiff has . . . failed to

exhaust her administrative remedies for any action that occurred prior to September 8, 2015,

which was 45 days before Plaintiff initiated her EEO claim.” Dkt. 33-1 at 21. Under settled law,

the Court must consider events that occurred outside the 45-day window for initiating the O&I

counseling process, so long as those events are “part of the same actionable hostile work

environment” as Marks’s conduct in the October 22, 2015 meeting. Morgan,

.

Because the GAO has made no argument about which allegations or actions predating September

8, 2015 it seeks to preclude the Court from considering, the Court will deny the GAO’s motion

to dismiss any portion of Duffy’s hostile work environment claims for failure to exhaust

administrative remedies.

Plaintiff’s denial of reasonable accommodation (Count III) and disparate treatment

(Count VI) claims, Dkt. 31 at 89–90, 92–94, in contrast, are not the type of claims that by their

“very nature” “involve[] repeated conduct.” Morgan,

; see Owens-Hart v.

Howard Univ.,

(D.D.C. 2016) (explaining that each denial of an

accommodation is a separate “discrete act”); Panarello v. Zinke,

, 102–03

(D.D.C. 2017) (describing incidents of disparate treatment as discrete acts). The GAO argues

that at least some conduct that might be relevant to those claims occurred either before

September 8, 2015 or after Duffy submitted her O&I complaint in February 2016. See Dkt. 33-1

19 at 20–23. Accordingly, if Duffy’s claims depended on that conduct, the Court would be required

to dismiss those claims for failure to exhaust. But Duffy’s claims do not depend on conduct

occurring outside the exhaustion window. She alleges, for example, that she submitted requests

for accommodation in both October and November 2015 and that both requests were denied.

Dkt. 31 at 64–65 (Second Am. Compl. ¶¶ 187, 190) (October 2015 request); id. at 72 (Second

Am. Compl. ¶¶ 204–06) (November 2015 request). She also alleges that, during that period,

non-disabled employees were permitted to work from an alternate location eight out of every ten

workdays but that she was not. Id. at 94 (Second Am. Compl.) And, she alleges that she

complained of those denials in her EEO counseling and formal complaint. Id. at 70, 76 (Second

Am. Compl. ¶¶ 196, 223). The Court, accordingly, cannot dismiss Duffy’s failure to

accommodate or disparate treatment claims because she has alleged at least one theory

supporting relief for each claim that is premised on conduct that she timely raised in the

administrative EEO process.

The Court agrees with the GAO, however, that Duffy failed to exhaust her administrative

remedies with respect to her retaliation claim (Count VII). Id. at 94 (Second Am. Compl.). Even

as described by Duffy herself in the second amended complaint, Duffy’s O&I complaint did not

include allegations of unlawful retaliation. Nor can the Court conclude that Duffy’s

administrative allegations of harassment and failure to accommodate were sufficient to

encompass her claim for retaliation. As this Court has previously explained in Hargrove v.

AARP,

(D.D.C. 2016), prior to the Supreme Court’s decision in National

Railroad Passenger Corp. v. Morgan,

(2002), the D.C. Circuit “permitted a Title

VII plaintiff—and by implication, and an ADA plaintiff to bring a lawsuit asserting claims that

were administratively exhausted or that were ‘like or reasonably related to the allegations’

20 contained in the administrative complaint or ‘growing out of such allegations.’” Hargrove, 205

F. Supp. 3d at 118 (quoting Park v. Howard Univ.,

(D.C. Cir. 1995)) (other

internal citations omitted). Morgan, however, put an end to the “reasonably related” rule, and an

ADA plaintiff must now timely exhaust administrative remedies with respect to claims—unlike

hostile workplace claims—premised on “discrete acts of discrimination.”

at 119 (citing

Morgan,

). Here, because Duffy’s O&I complaint was limited to hostile

workplace and failure to accommodate claims, she cannot now assert a separate—and

unexhausted—claim for retaliation. 3

The Court will, accordingly, dismiss Duffy’s retaliation claim (Count VII) for failure to

exhaust her administrative remedies.

2. Hostile Workplace Claim

The GAO also moves to dismiss Duffy’s ADA hostile workplace claims (Counts II and

V), Dkt. 31 at 88–89, 91–92 (Second Am. Compl.), for failure to state a claim. Dkt. 33-1 at 26–

29. Although the D.C. Circuit has yet to decide the question, several other circuits and numerous

decisions from this Court have held that hostile workplace claims are cognizable under the ADA.

See Lanman v. Johnson Cnty., Kansas,

, 1155–56 (10th Cir. 2004); Shaver v.

Indep. Stave Co.,

, 719–20 (8th Cir. 2003); Flowers v. S. Reg’l Physician Servs.,

Inc.,

, 232–35 (5th Cir. 2001); Webster v. U.S. Dep’t of Energy,

(D.D.C. 2017); Ham v. Ayers, No. 15-1390,

, at *5 (D.D.C. Mar. 14,

2019); Aldrich v. Burwell,

(D.D.C. 2016). Because the GAO does not

3 The Court also notes that Duffy was represented by counsel at the time she filed her administrative complaint and that, as a result, her failure to include a claim for retaliation was not merely a mistake of nomenclature by someone untrained in the law. Dkt. 33-8 at 5–13.

21 dispute this premise, the Court will proceed on the assumption that the ADA authorizes recovery

for hostile workplace claims.

To state a hostile workplace claim, an ADA plaintiff must allege that “(1) she is disabled

or is perceived as disabled; (2) she was subjected to unwelcome harassment; (3) the harassment

occurred because of her disability or the perception that she was disabled; (4) the harassment

affected a term, condition, or privilege of employment; and (5) there is a basis for holding the

employer liable for the creation of the hostile work environment.” Floyd v. Lee,

(D.D.C. 2013). In evaluating this type of claim, the Court “looks to 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.”

(quoting

Ayissi-Etoh v. Fannie Mae,

(D.C. Cir. 2013) (per curiam)).

The GAO contends that the only factual allegations that even arguably support Duffy’s

hostile workplace claim are those involving the comments that Marks and Briscoe purportedly

made during the October 2015 meeting. Dkt. 33-1 at 28. As Duffy describes those remarks,

they were at times mocking and snide, suggested that Duffy was lying about her disability, and,

more significantly, conveyed a threat that Duffy would risk revealing her “mental disorder” to

the Comptroller of the United States and other senior officials if she insisted on pursuing her

request for an accommodation. Dkt. 31 at 65–68 (Second Am. Compl. ¶ 190). Even assuming

that Marks and Briscoe made these comments, the GAO maintains, Duffy’s claim fails because a

single conversation “fails to show the requisite ‘cumulative effect’ necessary to state a claim for

a hostile work environment.” Dkt. 33-1 at 28 (quoting Baird v. Gotbaum,

(D.C. Cir. 2015)).

22 According to Duffy, this allegedly caustic conversation forms only a part of her

harassment claim. Rather, in her view, her hostile workplace claim (Count II) Dkt. 31 at 88–89

(Second Am. Compl.), is predicated on a broader array of events. She argues:

[T]he totality of circumstances show that GAO Management hired [her] for an ad-hoc Communications “analyst-in-name-only” position in which she was subjected to pervasive ridicule, insult, and intimidation that was frequent, offensive, interfered with [her] work performance, altered the conditions of her employment, was connected to her membership in a protected class, and ultimately, damaged her health, interfered with her career, and resulted in her resignation.

* * *

[She was] [s]ubjected to chaotic, dysfunctional working conditions where her work product could be rejected or appropriated at the convenience of others; routinely denied development and promotion opportunities commensurate with her professional attainments while being encouraged not to quit her job; passively denied the opportunity to engage in assignments more appropriate to her abilities due to an imbalance of entry level work which could have been equitably and easily reassigned; denied the tools to adequately perform her duties at the standard her training and expertise warranted, and—once she was known to have useful skills—subjected to extreme overwork that, in spite of her best efforts to manage it, eventually contributed to a serious breakdown of her physical health.

Dkt. 37 at 30. Duffy further alleges that, during the Alternative Dispute Resolution (“ADR”)

process that was initiated after she filed her O&I complaint, “Marks . . . expressed contempt

toward [Duffy], and continued to make . . . false statements about her [Reasonable

Accommodation] request and her disability.” Dkt. 31 at 74 (Second Am. Compl. ¶ 216). Even

after the ADR process, Duffy contends that Marks continued to harass her, id. at 75 (Second Am.

Compl. ¶ 218), and that “she had no choice but to submit to further harassment by Marks if she

wished to be accommodated for her disability,” id. (Second Am. Compl. ¶ 221). In sum, her

claims turn on the October 2015 meeting and on a pattern of contemptuous treatment and

23 failures to grant her reasonable accommodations, which ultimately led to her constructive

discharge.

Duffy’s allegations that she was subjected to “ridicule, insult, and intimidation that was

frequent, offensive, interfered with [her] work performance, id. at 91 (Second Am. Compl.),” and

that Marks “expressed contempt toward” her during the ADR process and continued to “harass”

her after it concluded, id. at 74–75 (Second Am. Compl. ¶¶ 216–18), are conclusory and

unsupported by the type of concrete factual allegations necessary to state a claim under Federal

Rules of Civil Procedure 8 and 12(b)(6). See Ashcroft v. Iqbal,

, 678–79 (2009);

Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011) (“Plaintiff’s statement

that she was ‘mistreated, harassed, intimidated[,] and disrespected’ by her supervisor and co-

workers . . . is nothing more than a legal conclusion.”); Aldrich v. Burwell,

,

137–38 (D.D.C. 2016) (finding allegations of “‘rude, hostile, and otherwise demeaning

treatment’ . . . too vague and conclusory to meaningfully contribute to” the plaintiff’s hostile

work environment claim). For purposes of determining whether the second amended complaint

states a claim of workplace harassment, the Court must, instead, focus on Duffy’s factual

allegations of specific, offensive workplace conduct.

Putting Duffy’s conclusory allegations aside, she fails to allege facts sufficient to state a

hostile workplace claim. To state a claim based on a hostile workplace, the plaintiff must allege

facts that, if accepted as true, would show that her employer subjected her to discriminatory

harassment that was “sufficiently severe or pervasive to alter the conductions of the victim’s

employment and create an abusive working environment.” Baloch v. Kempthorne,

(D.C. Cir. 2008) (quoting Harris v. Forklift Sys., Inc.,

(1993)). This

is not a “mathematically precise test,” Harris,

, but, rather, requires courts to

24 consider factors such as “the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance,”

. The standard is a “demanding” one,

however, in order to avoid turning federal antidiscrimination statutes into codes of “general

civility.” Faragher v. City of Boca Raton,

(1998) (second quote quoting

Oncale v. Sundowner Offshore Servs., Inc.,

(1998)).

It follows that “isolated incidents (unless extremely serious) will not amount to” a hostile

work environment,

and that “the more severe the harassment, the less pervasive it needs to

be, and vice versa,” Jimenez v. McAleenan, No. 17-cv-2731,

, at *7 (D.D.C.

Aug. 20, 2019) (quoting Ayissi-Etoh,

)). It is extremely rare that a single incident

is sufficiently severe to rise to the level of a hostile work environment, Stewart v. Evans,

(D.C. Cir. 2002), although even a single, extraordinarily offensive or demeaning

assertion might suffice, see, e.g., Ayissi-Etoh,

(Kavanaugh, J., concurring)

(“[B]eing called the n-word by a supervisor [on one occasion] . . . suffices by itself to establish a

racially hostile work environment”).

Duffy has failed to allege facts sufficient to meet this “demanding” test. To be sure,

Marks’s disparaging comments were not words alone, without tangible consequence—they were

accompanied by alleged denials of Duffy’s requests for reasonable accommodation. But Courts

in this district “frown[] on plaintiffs who attempt to bootstrap their alleged discrete acts of

retaliation” or other employment discrimination “into a broader hostile work environment

claim.” Thomas v. Securiguard Inc., No. 18-0125,

, 91 (D.D.C. 2019)

(quoting Mason v. Geithner,

(D.D.C. 2011)). To be sure, “[t]he

prolonged denial of a reasonable accommodation can underlie a hostile work environment claim

25 when ‘all the circumstances’ would support such a claim.” Floyd v. Lee,

(D.D.C. 2015) (emphasis added) (quoting Oncale,

). But, here, Duffy’s own

allegations show that the GAO allowed her to telework for extended periods of time, see, e.g.,

Dkt. 31 at 54–55 (Second Am. Compl. ¶ 158), and the overall “circumstances” alleged in the

second amended complaint do not meet the standard for either severity or pervasiveness

necessary to state a claim based on a hostile workplace. Although the Court does not doubt that

Duffy’s interactions with Marks and Briscoe were both objectively and subjectively upsetting,

the second amended complaint fails to identify the type of “severe or pervasive” hostility or

abuse necessary to state this type of claim. See Achagzai v. Broadcasting Bd. of Governors,

(D.D.C. 2016) (quoting Harris,

).

Accordingly, the Court will dismiss Duffy’s hostile workplace environment claim for

failure to state a claim.

3. The GAO’s Motion for Summary Judgment

Finally, GAO moves for summary judgment with respect to Duffy’s ADA claims (Counts

I–VII), Dkt. 31 at 87–95 (Second Am. Compl.), on the ground that she abandoned each of her

requests for a reasonable accommodation. Dkt. 33-1 at 13, 23–26. When considering a motion

for summary judgment, unlike a motion to dismiss, the Court may consult evidence outside the

pleadings to determine whether a genuine issue of material fact exists. See Fed. R. Civ. P. 56(a),

(c). Because the Court has already concluded that Duffy has exhausted her administrative

remedies only with respect to her October 2015 and November 2015 requests for a reasonable

accommodation, the Court considers the GAO’s motion for summary judgment with respect to

only those requests. Moreover, because Duffy brings just one claim for failure to accommodate

(Count III) relying on both requests, Dkt. 31 at 89–90 (Second Am. Compl.), the GAO must

26 show that both requests were abandoned to obtain summary judgment on that claim. After

reviewing the still-developing record, the Court concludes that the “issues need further

development” and thus exercises its “discretion to deny [the] motion for summary judgment

without prejudice.” 10A Wright & Miller, Federal Practice and Procedure § 2718 (4th ed. 2019).

The GAO argues that Duffy abandoned her request for a reasonable accommodation

because she refused to engage in the “interactive process” contemplated by the ADA. See Ward

v. McDonald,

(D.C. Cir. 2014) (describing the “interactive process” as “‘a

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

what accommodation would enable the employee to continue working’” (quoting EEOC v.

Sears, Roebuck & Co.,

(7th Cir. 2005)). With respect to Duffy’s October

2015 request, the GAO contends that Duffy stopped participating in the interactive process when

she requested that “all further action on [her] [Reasonable Accommodation] request be stopped,

pending an EEO complaint.” Dkt. 33-1 at 23–26; Dkt. 33-2 at 1 (Def.’s SUMF ¶ 4); Dkt. 33-5 at

2;

But, Duffy claims that it takes two to tango and the GAO was an unwilling dance partner.

She alleges that, during the October 22, 2015 meeting, Marks verbally denied Duffy’s October

2015 request; refused to provide her with “[a]gency guidance related to . . . standards for

administering” reasonable accommodation requests; and made statements designed to intimidate

and to discourage Duffy from seeking review of Marks’s decision. Dkt. 31 at 65–69 (Second

Am. Compl. ¶ 190). Duffy alleges, for example, that when she inquired about the basis for

Marks’s denial of her request, Marks said the request could go to the Accommodations

Committee but then admonished Duffy: “let me tell you what is going to happen if I do that. The

Comptroller of the United States—and several members of the Executive Committee—are going

27 to learn all about your ‘mental disorder.’ Would you like me to do that?” Id. at 66 (Second Am.

Compl. ¶ 190). Duffy further alleges that, at various points, Marks refused to explain why she

was not crediting the medical evidence and other documentation that Duffy had provided in

support of her request. See id. at 65–68 (Second Am. Compl. ¶ 190).

The “interactive process” used to determine whether an accommodation is necessary and

appropriate depends on the good faith participation of both the employer and employee; “neither

party should be able to cause a breakdown in the process for the purpose of either avoiding or

inflicting liability.” Sears, Roebuck & Co.,

(quoting Beck. v. Univ. of Wisconsin

Bd. of Regents,

(7th Cir. 1996)). It follows that, if an employer participates

in the “interactive process” in “bad faith,” the employer may be deemed to have denied the

accommodations request. Ward,

. That bad faith may take the form of

“obstruct[ion] or delays [in] the interactive process” or “fail[ure]s to communicate” with the

other party, because such actions are the “cause of the breakdown” in the process.

(quoting

Sears, Roebuck & Co.,

). By that same logic, bad faith may also take the form of

threats or other actions taken solely for the purpose of discouraging an employee from pursuing a

request for an accommodation.

The GAO may be right that Duffy is to blame for the breakdown in the interactive

process; the record contains evidence that she expressly abandoned her request for an

accommodation. See, e.g., Dkt. 33-5 at 2 (“At this time . . . I have asked that all further action on

my RA request be stopped, pending an EEO complaint”). But it is also possible that Marks

erected insuperable hurdles to the process or otherwise obstructed Duffy’s efforts to seek an

accommodation. As Duffy explained in a memorandum to Marks, she “believe[d] that the

communication dynamics within the GAO’s [Reasonable Accommodation] office [were]

28 sufficiently dysfunctional as to make GAO’s [Reasonable Accommodation] process

administratively ineffective and medically unsafe for [her] to participate in.”

Duffy further

posited that she had already submitted documentation sufficient to support her request and that

Marks and Briscoe responded in a manner that left her convinced that the process was

“hopelessly tainted with bias and discrimination against [her] based on the nature of [her]

disability.” Id. at 8.

On the present record, the Court cannot decide who is right—and certainly cannot do so

with the certainty required to resolve a claim on summary judgment before potentially relevant

discovery is complete. The Court will, accordingly, deny the GAO’s motion for summary

judgment without prejudice and will allow the parties to take additional discovery regarding the

“interactive process.”

F. Rehabilitation Act

The Court turns finally to the GAO’s challenge to Duffy’s sole claim for relief under the

Rehabilitation Act (Count VIII), which alleges that Duffy was denied a reasonable

accommodation and was constructively discharged as a result of the GAO’s unlawful disability

discrimination. Dkt. 31 at 95–96. The GAO contends that this claim should be dismissed

because the Rehabilitation Act does not apply to the GAO, Dkt. 33-1 at 14, or, in the alternative,

because Duffy failed to exhaust her administrative remedies, id. at 20–23. Because the Court

agrees with the first of these contentions, it does not reach the second.

The Court begins its interpretation of the Rehabilitation Act with the text of the statue.

See Hughes Aircraft Co. v. Jacobson,

(1999). The Rehabilitation Act

provides, in relevant part, that otherwise qualified individuals with disabilities, may not “be

excluded from the participation in, be denied the benefits of, or be subjected to discrimination

29 under any program or activity receiving Federal financial assistance or under any program or

activity conducted by any Executive agency or by the United States Postal Service.”

(a). The GAO is not an “Executive agency,” see Chennareddy v. Bowsher,

(D.C. Cir. 1991); see also

(a) (the GOA is an “instrumentality of the United

States Government independent of the executive departments”), nor is it a “program or activity

conducted by an Executive agency” or a “program or activity receiving Federal financial

assistance,”

(a). Although the GAO, like all government offices, operates

pursuant to a congressional appropriation of funds, that does not mean that it is a “program or

activity receiving Federal financial assistance” or else there would be little reason to specify

separately that “programs or activities conducted by” the Executive branch are covered by the

Rehabilitation Act. See Corley v. United States,

(2009) (rejecting an

interpretation that was “at odds with one of the most basic interpretive canons, that ‘[a] statute

should be construed so that effect is given to all its provisions, so that no part will be inoperative

or superfluous, void or insignificant’” (quoting Hibbs v. Winn,

(2004)

(alternation in original)). The text of the Rehabilitation Act itself, therefore, does not reach the

GAO.

To be sure, Congress did extend the Rehabilitation Act to apply “to the legislative branch

of the Federal Government” when it enacted the Congressional Accountability Act (“CAA”).

See

(a). But, in so doing, Congress provided the protections of the Rehabilitation

Act and other statutes only to “covered employee[s],” which the CAA defines as “any employee

of” eleven different enumerated government entities.

(a)(3). The GAO does not

appear on that list.

The Court recognizes that other provisions of the U.S. Code treat the

GAO as an “instrumentality of Congress.”

(4); see also Chennareddy, 935

30 F.3d at 319 (“GAO is a legislative branch agency . . . .”). Had Congress incorporated that

definition in the CAA, or had it merely directed that the CAA would apply to the “legislative

branch” of the government, the GAO’s status as a legislative branch agency might have been

enough to extend the Rehabilitation Act to the GAO. See Ethyl Corp. v. EPA,

(D.C. Cir. 1995) (“[M]ention of one thing implies the exclusion of another” (quoting Am.

Methyl Corp. v. EPA,

, 835–36 (D.C. Cir. 1984)).

Finally, the Court notes that the statute creating the GAO provides that “all laws

generally related to administering an agency apply to the Comptroller General.”

(a). Similarly, the GAO’s personnel statute provides that its provisions “do not affect a

right or remedy of an officer, employee, or applicant for employment under a law prohibiting

discrimination in employment in the Government on the basis of . . . [a] handicapping

condition.”

(f)(2). Those general provisions, however, cannot override

Congress’s exclusion of the GAO from its extension of the Rehabilitation Act to specific

instrumentalities of Congress. “Where there is no clear intention otherwise, a specific statute

will not be controlled or nullified by a general one, regardless of the priority of enactment.”

Crawford Fitting Co. v. J.T. Gibbons, Inc.,

(1987) (quoting Radzanower v.

Touche Ross & Co.,

(1976)). Nothing in the laws that, in general, govern the

administration of the GAO conveys a “clear intention” to override either the Rehabilitation Act

or the CAA.

The Court will, according, dismiss Duffy’s Rehabilitation Act claim pursuant to Rule

12(b)(6).

31 CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss for lack of subject-matter

jurisdiction and failure to state a claim, and in the alternative, motion for summary judgment,

Dkt. 33, is hereby GRANTED in part and DENIED in part.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: March 21, 2020

32